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CHURCHES  IN  THE  MODERN 
STATE 


BY  THE  SAME  AUTHOR 

THE  GOSPEL  AND  HUMAN  NEEDS: 
Hulsean  Lectures.  With  Additions.  Crown 
8vo,  4J-.  bd.  net. 

Popular  Edition.    With  a  specially  written 
Introduction.     Paper  covers,  6d.  net. 

RELIGION  AND  ENGLISH  SOCIETY. 

Two  Addresses.     %vo,2s.;  paper  covers,  I  J. 

CIVILISATION  AT  THE  CROSS 
ROADS.  Four  lectures  delivered  on  the 
William  Beldon  Noble  Foundation  before 
Harvard  University  in  the  year  1911.  Crown 
8vo,  ^s.  net. 

ANTICHRIST  AND  OTHER  SER- 
MONS.    Crown  8vo,  ss.  net. 

LONGMANS,  GREEN  AND  CO. 

LONDON,  NEW  YORK,  BOMBAY,  AND  CALCUTTA 


FROM  GERSON  TO  GROTIUS:  Studies 
in  the  History  of  Political  Thought,  1414- 
1625.     Crown  8vo,  3^-.  6d.  net. 

Cambridge  University  Press. 


CHURCHES    IN   THE 
MODERN   STATE 


BY 

JOHN    NEVILLE    FIGGIS 

LiTT.  D.,    Hon.  D.D.  (Glasgow) 

OF  THE  COMMUNITY  OF  THE  RESUKRECTION 
HONOEARY  FELLOW  OF  ST.  CATHARINE'S  COLLEGE,  CAMBRIDOB 


LONGMANS,    GREEN    AND    CO. 
39    PATERNOSTER    ROW,    LONDON 

NEW  YORK,  BOMBAY,  AND  CALCUTTA 
1913 

All  rights  reserved 


THOMAE  •  ALEXANDRO  •  LACEY 

MAGISTRO     .     DISCIPULUS 

SCRIPTOR  .  INDIGNUS 

J.  N.  F. 

HUNC  .  LIBRUM 

PIGNUS     .     AMORIS 

DEDICAT 


PREFACE 

The  four  lectures  which  make  the  main 
matter  of  this  volume  were  delivered  to  the 
clergy  in  Gloucester  in  June  1911  at  the  re- 
quest of  the  Bishop  of  the  Diocese.  Since 
then  I  have  re-written  them,  still,  however, 
retaining  the  lecture  form.  Pressure  of 
other  work  is  responsible  for  so  long  a 
delay  in  publication.  The  first  Appendix 
contains  a  paper  read  to  the  Royal  His- 
torical Society,  and  printed  in  the  Society's 
Transactions.  This  develops  in  greater  de- 
tail the  historical  thesis  which  is  the  basis  of 
the  lecture  on  "The  Great  Leviathan."  The 
other  Appendix  consists  of  three  articles 
on  Creighton,  Maitland,  and  Acton,  which 
were  contributed  by  the  author  to  the 
Guardian  in  the  year  1907.  Since  they 
deal  to  some  extent  with  the  main  topic 
of  these  lectures,  I  have  ventured  to  in- 


viii     CHURCHES  IN  THE  MODERN  STATE 

elude   them,  with  the  kind   permission  of 
the  Editor. 

One  or  two  further  words  may  elucidate 
the  meaning  of  the  volume.  The  word 
"  Churches "  in  the  title-page  is  used 
without  any  theological  prejudices  to  de- 
note religious  bodies  of  any  kind.  In 
regard  to  the  latter  part  of  the  lecture 
on  "  The  Civic  Standpoint,"  should  any 
reader  be  disposed  to  charge  the  writer  with 
inculcating  a  cowardly  attitude  in  the  face 
of  industrial  oppression,  I  would  ask  him 
to  read  alongside  of  it  the  two  sermons  for 
Ash  Wednesday  and  the  Friday  succeeding, 
printed  in  Antichrist}  In  regard  to  the 
first  Appendix,  I  would  wish  here  to  accept 
the  correction  suggested  by  Mr.  C.  N. 
Sidney  -  Woolf  in  his  valuable  work  on 
Bartolus.  I  have  no  doubt  at  all  that 
he  is  right  in  the  importance  which  he 
attaches  in  the  development  of  ideas  to  the 
enthusiasm  of  the  twelfth-century  lawyers. 

^  Antichrist  and  Other  Sei'mons.  London  :  Longmans, 
Green  &  Co. 


PREFACE  ix 

In  the  chapter  on  "  Ultramontanism,"  I 
trust  that  nothing  has  been  said  which  can 
wound  the  rehgious  sense  of  other  Chris- 
tians. It  is  of  the  poUtical  meaning  of  an 
ecclesiastical  autocracy  that  I  am  speaking. 
Further,  in  claiming  inherent  life  for  the 
different  parts  of  the  Catholic  Church,  the 
writer  is  not  to  be  understood  as  meaning 
by  that  an  absolutely  independent  entity 
possessed  by  the  Church  of  England. 

The  main  purpose  of  the  lectures,  slight 
though  they  be,  will  have  been  accom- 
plished if  I  can  have  persuaded  the  reader 
to  see  that  the  problem  is  one  which  is 
concerned  not  with  ecclesiastical  preten- 
sions so  much  as  with  the  nature  of  human 
life  in  society.  Special  conditions  are  bring- 
ing this  matter  to  the  fore  from  directions 
far  different.  No  ideal  of  "  the  great  State  " 
will  ultimately  succeed  in  doing  the  good 
anticipated  if  its  founders  ignore  the  funda- 
mental facts  of  the  reality  of  small  societies. 
The  author  has  been  led  to  his  present 
views  not  by  the  desire  to  defend  Church 


X     CHURCHES   IN  THE   MODERN   STATE 

rights,  but  by  long  brooding  over  the 
Austinian  doctrine  and  the  perception  forced 
on  him  at  last  through  Maitland  and  Gierke, 
that  it  is  either  fallacious  or  so  profoundly 
inadequate  as  to  have  no  more  than  a 
verbal  justification.  One  begins  by  think- 
ing Austin  self-evident,  one  learns  that 
many  qualifications  have  to  be  made,  and 
finally  one  ends  by  treating  his  whole 
method  as  abstract  and  theoretic. 

So  far  as  this  side  of  the  question  goes, 
the  writer  can  claim  that  what  is  here  set 
down  embodies  the  main  results  of  more 
than  twenty  years'  study.  For  ever  since 
I  began,  in  1891,  to  study  the  divine  right 
of  kings,  I  have  devoted  such  time  as  could 
be  spared  from  other  and  more  immediate 
claims  to  the  study  of  those  writers  in 
many  ages  who  were  concerned  with  the 
problems  of  political  philosophy,  and  more 
especially  with  that  class  of  problems  dis- 
cussed in  this  volume.  I  know  how  in- 
complete and  sketchy  what  is  here  written 
down  must  appear.     But  I  would  beg  the 


PREFACE  xi 

reader  to  bear  in  mind  that  if  its  expression 
is  hasty,  this  is  not  the  result  either  of 
indolent  levity  or  of  a  desire  to  promote  a 
clericalist  cause.  I  have  come  to  different 
notions  about  the  juristic  nature  of  the 
State,  the  Church,  and  the  individual  from 
those  which  seemed  at  one  time  so  clear. 
If  once  people  understand  that  we  are 
concerned  with  the  profoundest  of  all  the 
problems  of  men's  life  together,  they  will 
be  less  ready  to  condemn  or  to  support 
opinions  on  any  narrow  ground. 

I  have  to  thank  Messrs.  Macniven  and 
Wallace,  Edinburgh,  for  their  kind  per- 
mission to  make  citations  from  llie  Free 
Church  of  Scotland  Appeals,  1903,  edited 
by  Mr.  R.  L.  Orr. 

I  have  further  to  thank  the  Rev.  A. 
Wicksteed  for  much  advice  in  correcting 
the  proof-sheets. 

J.  Neville  Figgis. 


CONTEISTS 


LECTURE  I 

PASS 

A  Free  Church  in  a  Free  State     ...         3 


LECTURE  II 

The  Great  Leviathan        .....       54 

LECTURE  III 
The  Civic  Standpoint         •         ■         •         •         •       99 

LECTURE  IV 

Ultramontanism  .         .         .         .         .         .135 

APPENDIX   I 

Respublica  Christiana         .....     175 

APPENDIX  II 

Three  Cambridge  Historians  :  Creighton,  Mait- 

LAND,    AND    AcTON  .....  227 


CHURCHES  IN  THE  MODERN 
STATE 


CHURCHES  IN  THE 
MODERN  STATE 

LECTURE   I 

A   FREE   CHURCH   IN   A   FREE   STATE 

Libera  Chiesa  in  Libero  Stato.  Such  is  the 
aphorism  in  which  the  maker  of  Itahan  unity 
summ.ed  up  the  ideal  of  statesmanship  for 
the  solution  of  the  perennial  problem  of  the 
two  powers.  Whether  or  no  this  ideal  can 
be  attained  is  doubtful ;  that  it  never  has 
been  attained  is  certain.  But  approximations 
may  be  made.  Mr.  Gladstone  used  to  say 
that  political  ideals  were  never  realised. 
That  may  be  true,  but  it  does  not  follow 
that  they  are  never  effective.  Christian 
holiness  is  not  only  never  achieved  in 
perfection,  but  it  is  far  less  nearly  and 
less  frequently  achieved  than  the  ethical 
ideals  of  Pagans  or  Mohammedans.  Yet 
for  all  that  it  leads  to  a  life  higher,  not 
merely  in  degree  but  in  kind,  than  that  of 


4      CHURCHES  IN  THE  MODERN  STATE 

all  other  moral  or  religious  systems.  And 
so  I  think  that  we  may  spend  some  time, 
not  unprofitably,  in  discussing  what  we 
mean  by  claiming  freedom  for  the  Church ; 
whether,  politically  speaking,  there  is  such 
an  entity  as  a  Church  ;  and  what,  if  so,  is 
the  least  that  it  can  claim  without  com- 
mitting corporate  suicide. 

It  is  "the  least  that  it  can  claim"  of 
which  we  are  to  speak.  Some,  perhaps,  will 
doubtless  criticise  what  is  here  said,  especi- 
ally in  the  third  lecture,  and  will  complain 
that  it  is  unduly  conciliatory  to  the  State. 
I  cannot  help  that.  That  the  Church  might 
under  certain  conditions  claim  a  great  deal 
more  may  be  true.  But  with  so  much  frank 
denial  of  her  right  to  claim  anything  at  all, 
it  seems  to  me  at  this  juncture  far  more 
profitable  to  discuss  what  she  must  claim 
so  long  as  she  is  a  Church,  than  what  she 
might  claim  if  her  right  to  an  inherent 
life  were  once  universally  admitted  by 
statesmen  and  lawyers. 

First  of  all,  then,  it  seems  needful  to  make 
clear  that  the  very  notion  of  the  Church 
as  an  independent  entity  is  denied  explicitly 
or  implicitly  in  much  of  the  current  con- 


A  FREE  CHURCH  IN  A  FREE  STATE     5 

troversial  writing,  and  is  surrendered  too 
often  even  by  her  own  repres^tatives.  I 
do  not  say  that  we  are  as  yet  face  to  face 
with  any  such  denial,  official  and  public. 
But  we  are  face  to  face  with  it  as  a  current 
presupposition  and  as  a  definite  theory. 
For  instance,  in  one  of  the  hearings  of 
the  case  of  Canon  Thompson,  Mr.  Justice 
Darhng  delivered  himself  to  the  effect  that 
a  Law  of  God  had  been  altered  by  an  Act 
of  Parliament.  1  This,  it  is  true,  was  only 
an  obite?'  dictum :  all  he  was  actually  adjudi- 
cating upon  was  the  question,  whether  in 
view  of  certain  words  in  the  Deceased 
Wife's  Sisters  Act  a  writ  of  prohibition 
might  lie  against  the  Dean  of  Arches.  No 
one  disputes  his  competence  to  interpret 
the  Act  of  Parliament,  or  need  complain 

1  "  For  my  part,  I  am  of  opinion  that  this  mar- 
riage, which  before  was  contrary  to  the  Law  of  God 
merely  because  the  statute  condemned  it  as  such,  is  so 
no  longer,  and  that  by  virtue  of  the  statute  which 
legalises  it.  For  otherwise,  we  should  have  here  a 
declaration  that  statutes  recognise  a  certain  contract 
as  continuing  contrary  to  the  Law  of  God,  and  do  yet 
enact  that  it  shall  be  good  by  the  Law  of  England." 
Why  should  they  not? — Law  Reports,  Probate  Division, 
1910,  p.  81. 


6     CHURCHES  IN  THE  MODERN  STATE 

of  the  House  of  Lords  for  upholding  his 
interpretation.  Nobody  disputes  that  if 
the  highest  judicial  authority  declared  that 
Parliament  meant  white  when  it  said  black, 
that  dictum  would  be  law  unless  repealed. 
But  the  fact  remains  that  INIr.  Justice 
Darling  used  those  words,  and  that  they 
express  in  a  piquant  form  an  attitude  of 
mind  widely  held  among  Englishmen.  Of 
course  this  obiter  dictum  may  have  been 
pure  cynicism,  one  of  those  judicial  plea- 
santries which  cause  "laughter  in  court" 
and,  out  of  it,  amazement  not  at  the  joke 
but  at  the  merriment.  But  if  it  were  not 
that,  it  must,  I  should  suppose,  have  meant 
something  of  this  sort.  The  Law  of  God 
can  be  operative  in  human  society  only 
in  so  far  as  it  expresses  itself  in  positive 
enactments  or  recognised  customs.  These 
acts  and  customs  may  be  either  direct, 
the  work  of  the  supreme  legislature,  or 
they  may  be  indirect,  the  acts  of  some 
other  body  with  powers  derived  therefrom. 
The  rules  of  the  Church  of  England  about 
communion  were  of  that  nature,  and  were 
abrogated  by  the  new  Act  of  Parliament, 
in  spite  of  those  words  which  were  inserted 


A  FREE  CHURCH  IN  A  FREE  STATE     7 

expressly  with  the  contrary  intention.  So 
far  indeed  as  the  words  "  notorious  evil- 
hver  "  were  concerned,  this  contention  would 
not  be  unreasonable ;  and  it  is  now  generally 
acknowledged  that  Canon  Thompson  was 
ill-advised  in  using  this  rubric  in  the  earlier 
stages  of  the  case  as  part  of  his  justifica- 
tion. It  may  be  well  argued  that  the  word 
"  notorious  "  has  reference,  not  to  Church 
Law  but  to  common  opinion  ;  and  that 
no  one  can  be  said  to  be  a  notorious  evil- 
liver  who  does  what  an  Act  of  Parliament 
empowers  him  to  do.  The  case  would  not 
be  dissimilar  if  the  Church  were  disestab- 
lished ;  for  in  that  case  a  man  excommuni- 
cated under  these  terms  would  have  the 
right  to  bring  an  action  for  libel,  and  it 
would  be  quite  open  for  a  jury  to  take  the 
view  that  "  notorious  "  had  reference  to  the 
general  morality  of  the  country  and  not  to 
the  particular  code  of  the  religious  body. 

But  the  point  in  this  case  is  the  denial 
of  the  authority  of  the  Canons  and  the 
abrogation  of  the  Table  of  Prohibited  De- 
grees by  a  pure  Act  of  State.  It  is  probable 
that  in  the  case  of  a  non-established  com- 
munion this  would  not  be  attempted.     Yet 


8     CHURCHES  IN  THE  MODERN  STATE 

it  is  clear  from  the  law  of  libel  and  slander 
that  the  grounds  of  excommunication  would 
have  to  be  specifically  stated  in  the  formu- 
laries, or  definite  power  to  exclude  given 
by  some  clause,  or  else  there  would  once 
more  be  a  conflict  of  laws,  and  the  sect 
might  find  itself  unable  to  maintain  its  own 
rites  of  exclusion.  Mere  disestablishment 
would  not  of  itself  ensure  liberty. 

For  this  reason  I  do  not  wish  to  discuss 
the  question  of  disestablishment.  At  bottom 
it  is  irrelevant  to  the  issue.  The  real  pro- 
blem is  the  relation  of  smaller  communities 
to  that  "  cornnmnitas  communitatum "  we 
call  the  State,  and  whether  they  have  an 
existence  of  their  own  or  are  the  mere 
creatures  of  the  sovereign.  It  might  in- 
deed be  true  as  a  matter  of  fact  that  dis- 
establishment is  the  necessary  condition  in 
this  country  of  the  recognition  in  the  Church 
of  those  principles  I  am  trying  to  set  down. 
But  if  so,  it  is  mere  fact ;  for  in  the  case 
of  the  Established  Kirk  of  Scotland  this 
recognition  exists  to  a  large  extent,  while 
in  certain  other  cases  where  a  Church  is 
not  established  it  is  still  without  real 
freedom. 


A  FREE  CHURCH  IN   A  FREE  STATE     9 

At  the  same  time,  since  the  use  of  the 
term  *'  Establishment "  to  denote  the  Church 
of  England  is  largely  responsible  for  the 
form,  if  not  the  matter,  of  our  difficulties, 
it  may  be  well  to  say  a  few  words  on  the 
topic.  The  word  "establish"  seems  to  me 
to  have  changed  its  connotation  somewhere 
in  the  course  of  the  eighteenth  century.  In 
the  apology  of  the  Commons  of  1604,  after 
saying  that  they  *'have  not  come  in  any 
Puritan  or  Brownish  spirit  to  introduce 
their  parity  or  to  work  the  subversion  of 
the  State  ecclesiastical,"  they  go  on  to  say 
that  they  do  not  "  desire  so  much  that  any 
man  in  regard  of  weakness  of  conscience 
may  be  exempted  after  Parliament  from 
obedience  unto  laws  established "  as  that 
new  laws  may  be  enacted.^  Here  the  phrase 
is  used  evidently  to  denote  the  laws  of 
the  Elizabethan  settlement.  The  Church 
of  England  as  by  law  established,  if  such 
a  phrase  could  then  have  been  employed, 
would  have  meant  not  as  by  law  founded, 
but  as  by  law  settled ;  it  refers  not  to  the 
origin  of  the  Church,  but  to  its  control. 

^  The  document  is  given  in  Prothero's  Statutes  and 
Constitutional  Documents,  pp.  286-93. 


10   CHURCHES  IN  THE  MODERN  STATE 

Thus  these  words  indicate  the  following 
things.  The  series  of  legal  changes  begin- 
ning in  the  reign  of  Henry  VIII  had 
practically  destroyed  benefit  of  clergy  and 
subjected  all  clerks  to  the  law  of  the  land ; 
the  Elizabethan  settlement  sanctioned  by 
the  Act  of  Uniformity  had  "established," 
or  sought  to  establish,  one  and  one  only 
form  of  legal  service  in  the  Church  of  Eng- 
land in  contradistinction  of  the  ancient 
variety  of  uses  from  diocese  to  diocese ; 
while  the  Act  of  Supremacy  (under  the 
8th  clause  of  which  the  Court  of  High 
Commission  was  set  up)  and  the  various 
statutes  against  Roman  and  Jesuit  propa- 
ganda had  surrounded  the  regime  with 
a  strong  police  bulwark  against  all  who 
strove  to  upset  it.  What  the  faithful  Com- 
mons were  thinking  of  was  the  fact  of  the 
settlement  and  the  sanction  of  it  in  the  Law 
of  England.  They  had  no  notion  of  an 
established,  as  opposed  to  a  non-established 
Church,  for  in  our  sense  of  the  word  the 
latter  was  a  conception  which  had  not 
crossed  their  minds,  however  congruous  it 
was  to  that  of  Robert  Browne  in  his  Re- 
formation witliout  Tarrying  for  Any.     But 


A  FREE  CHURCH  IN  A  FREE  STATE     11 

after  the  Revolution,  and  still  more  after 
the  Union  with  Scotland  in  1707,  things 
had  changed.  With  the  Toleration  Act 
came  a  definite  legal  status  for  religious 
bodies  other  than  the  Church  of  England. 
With  the  non-juring  schism  came  the  de- 
finite denial  on  the  part  of  the  strongest 
Episcopalians  of  the  need  or  importance  of 
establishment,  while  with  the  Union  there 
came  the  spectacle  of  two  Churches — one 
Presbyterian,  one  Episcopalian — equally- 
established  in  the  United  Kingdom.  All 
these  considerations,  aided  by  the  growth 
of  voluntaryism  in  Scotland,  led  to  that 
distinction  between  established  and  non- 
established  Churches,  which  we  think  so 
natural,  but  was  inconceivable,  not  merely 
in  the  Middle  Ages,  but  through  the  greater 
part  of  the  seventeenth  century.  Instead 
of  talking  of  the  Church  as  by  law  estab- 
lished, men  began  to  talk  of  "the  Estab- 
lished Church,"  and  eventually,  though 
perhaps  more  in  Scotland  than  in  England, 
simply  of  "  the  Establishment."  The  word 
came  to  have  the  meaning  of  "privileged," 
or,  officially,  the  State  religion,  as  distinct 
from  those  bodies  which,  though  tolerated 


12      CHURCHES  IN  THE  MODERN  STATE 

and  in  one  sense  established  (as  Lord  Mans- 
field   said),    were   private   in   their    nature, 
partaking  of  no  official  or  national  character. 
After  this   it  was   easy  for   the  unhistori- 
cally  minded  to  achieve  the  view  that  the 
Church  was  an  institution  founded  and  sup- 
ported by  the  State  for  its  own  purposes, 
with  no  powers  of  any  kind  except  as  dele- 
gated   by   ParHament.      This    notion   was 
stimulated    by  the   Roman   Catholic  claim 
that  the   events   of  the  sixteenth  century 
were  in  no  sense  a  development,  but  the 
substitution  of  a  body  entirely  new  ;  while, 
on  the  other  hand,  the  Puritan  dislike  of 
the  whole  Catholic  system  had  led  to  the 
entrenchment  within  the  Church  of  England 
of  a  strong  body  of  opinion  equally  anxious  to 
confine  the  Church  within  the  four  corners  of 
sixteenth- century  Protestantism.     All  this 
has  been  strengthened  by  the   growth    of 
parliamentary  sovereignty  and   what   Pro- 
fessor Dicey  in  his  Law  of  the  Constitution 
has   taught   us  to  call  the  "rule  of  law." 
The   extent   to   which  Parliament  has  ab- 
sorbed into  itself  every  kind  of  jurisdiction, 
and   the   modern   growth  of  State  action, 
together  with  that  legal  prejudice  we  shall 


A  FREE  CHURCH  IN  A  FREE  STATE     13 

have  soon  to  consider,  have  all  contributed 
to  produce  a  state  of  things  in  which,  for 
a  large  majority  of  people,  not  only  are 
there  no  inherent  rights  in  the  Established 
Church,  but  there  are  none  in  any  religious 
body,  none  in  any  secular  society,  not  even 
the  family  ;  while  for  many  more  any  notion 
of  a  rule  of  morality,  as  distinct  from  a  rule 
of  law,  seems  almost  blasphemy.  A  capital 
instance  is  the  attitude  of  the  jurists  towards 
International  Law.  International  Law,  as 
is  well  known,  cannot  be  brought  under  the 
Austinian  rubric,  because  by  the  very  nature 
of  the  case  it  is  imposed  by  no  determinate 
sovereign.  In  consequence  of  that  there 
has  prevailed  among  many  jurists  (as  dis- 
tinct from  publicists)  a  sort  of  prejudice 
against  it,  as  though  because  it  had  no  irre- 
sistible sanctions  it  not  only  was  not  law, 
but  was  not  even  custom ;  and  further,  as 
though  short  of  a  physical  sanction  it  was 
not  even  desirable  that  public  opinion  should 
be  stimulated  to  the  point  of  demanding 
that  international  relations  should  be  con- 
ducted in  accordance  with  any  rules  of 
action  save  immediate  convenience.  In 
other  words,  this  exaltation  of  the  Austinian 


14      CHURCHES  IN  THE  MODERN  STATE 

sovereign  has  led  to  the  depreciation  not 
only  of  religion  and  morality,  but  of  all  State 
action  save  that  of  the  purest  Machiavel- 
lianism, and  would,  if  logically  employed, 
have  justified  the  worst  excesses  of  bar- 
barism. As  a  matter  of  fact,  1  believe 
this  conception  of  law  to  be  no  more  than 
verbally  justifiable,  and  to  be  practically 
dangerous.  But  that  I  shall  try  to  show 
later  on.  At  present  we  are  concerned 
with  the  question  of  fact — the  denial  to 
the  Church  of  any  real  inherent  life.  Let 
me  quote  what  Professor  Dicey  says  in  his 
Law  and  Public  Opinion.  The  Divorce 
Act  of  1857  has  commonly  been  regarded 
as  a  great  invasion  of  the  rights  of  the 
Church,  in  that  it  compels  the  incum- 
bent, not  indeed  to  marry,  but  to  allow 
the  use  of  his  church  for  the  marriage  of 
divorced  persons.  Mr.  Dicey,  however, 
writes  as  follows  of  even  that  narrow  ex- 
emption allowed  by  the  Act :  *'  A  clergy- 
man of  the  Church  of  England  is,  after  all, 
an  official  of  the  national  Church ;  but 
under  the  Divorce  Act  he  is  allowed  to 
decline  to  solemnise  the  marriage  of  any 
person  whose  former  marriage  has  been  dis- 


A  FREE  CHURCH  IN  A  FREE  STATE     15 

solved  on  the  ground  of  his  or  her  adultery. 
Thus  a  clergyman,  while  acting  as  an  official 
of  the  State,  is  virtually  allowed  to  pro- 
nounce immoral  a  marriage  permitted  by 
the  morality  of  the  State."  ^ 

That  is  the  view,  then,  of  this  eminent 
authority,  who  represents,  I  should  suppose, 
better  than  almost  any  man  the  average 
opinion  of  the  highly  trained  jurist,  and  is 
our  highest  living  expert  in  Constitutional 
Law.  He  dislikes  the  mere  minimum  of 
liberty  allowed  in  the  Act  of  18.57  (which 
Mr.  Gladstone  never  ceased  to  oppose  as 
being  contrary  to  the  Hberty  of  the  Church), 
and  regards  this  grudging  permission  as  a 
dangerous  concession  to  a  non-national 
power.  It  is  clear  that  the  writer  de- 
precates the  notion  that  the  Christian 
Church  can  have  a  higher  law  than  that  of 
the  State ;  indeed  he  would  appear  to  go 
farther  and  to  identify  legal  with  moral  right. 
Although  this  is  not  definitely  stated  to 
be  the  author's  view,  yet  it  seems  to  be 
his  feeling,  that  ethics  no  less  than  religion 
is  the  creature  of  the  State.  It  may  be 
urged  that  this  attitude  is  a  consequence 

^  Law  and  Public  Opinion,  p.  315. 


16      CHURCHES  IN  THE  MODERN  STATE 

only  of  establishment,  and  that  if  the 
Church  were  disestablished  it  would  cease 
from  the  legal  standpoint  to  be  national, 
and  that  its  inherent  spiritual  authority 
would  at  once  be  recognised.  Is  this  cer- 
tain? That  some  change  in  this  direction 
would  follow  is  probable,  but  it  does  not 
necessarily  result  from  the  fact  of  dis- 
establishment, and  with  juristic  notions 
being  what  they  are  such  freedom  would 
probably  fall  very  short  of  anything  desired. 
We  have  in  this  matter  one  or  two  instances 
before  our  eyes.  Let  us  see  what  light 
they  throw  on  the  problem. 

No  one  will  claim  for  the  Roman  Church 
that  she  is  in  the  United  Kingdom  an 
established  body  in  the  technical  sense. 
Certainly  it  might  have  been  thought  she 
would  make  rules  for  her  own  members, 
and  in  many  respects  she  does  so.  The 
recent  discussions  about  the  ne  temere 
decree  have  enlightened  us.  Had  it  been 
claimed  that  that  decree  should  have  any 
bearing  on  the  question  of  legal  marriage  it 
would  indeed  be  an  invasion  of  the  sphere 
of  the  civil  power.  But  not  content  with 
affirming  this  undoubted  fact,  many  have 


A  FREE  CHURCH  IN  A  FREE  STATE     17 

gone  further.  One  Member  of  Parliament, 
who  represents  a  great  University,  is  reported 
to  have  "  denied  that  it  was  in  the  power 
or  right  of  any  Church  to  superadd  its  own 
conditions  on  what  the  law  considered  to 
be  sufficient  in  the  case  of  civil  marriage."  ^ 
It  may  be  said  that  this  is  an  isolated 
opinion,  that  it  represents  neither  the  poHcy 
of  the  Government  nor  the  practice  of  the 
Courts.  But  it  is  fair  evidence  of  the  state 
of  mind  of  many  Englishmen,  and  its 
logical  results  can  only  be  termed  pre- 
posterous. \i per  ijiipossibile  the  suggestions 
of  that  brilliant  dramatist  who  teaches 
morality  to  the  modern  world  were  to  be 
fulfilled,  and  divorce  were  to  be  made  "  as 
cheap,  as  easy,  and  as  secret  as  possible," 
this  principle  would  make  it  impossible  for 

^  "Even  if  this  decree  in  its  operation  had  been 
confined  to  the  members  of  the  Roman  Catholic  religion 
in  Ireland,  I  should  have  bitterly  resented  it,  because 
I  don't  think  it  is  in  the  power  or  duty  or  right  of 
any  Church  to  superadd  its  own  conditions  to  what 
the  law  considers  to  be  sufficient  in  the  case  of  civil 
marriage."  It  is  clear  that  on  this  pi'inciple  the  Chris- 
tian Church  in  its  early  development  was  acting  wrongly 
in  establishing  for  its  own  members  a  higher  standard 
of  morality  than  that  of  the  Pagan  world. — Parlia- 
mentary Debates,  Feb.  7,  1911?  col.  151. 

B 


18      CHURCHES  IN  THE  MODERN  STATE 

any  religious  body  to  maintain  itself  against 
the  promiscuous  adultery  which  it  would 
render  possible.  Moreover,  the  attack  on 
monogamous  marriage  as  a  lifelong  institu- 
tion is  now  so  universal  and  important,  that 
at  any  moment  measures  might  be  pro- 
posed which  not  the  wildest  imagination 
would  call  Christian.  1 

Marriage,  however,  though  it  is  the  storm- 
centre,  is  by  no  means  the  only  matter  on 
which  we  can  detect  this  reluctance  on  the 
part  of  statesmen  and  lawyers  to  allow 
religious  bodies  to  develop  according  to 
their  own  inherent  spirit — and  not  merely 
by  an  externally  imposed  rule.  An  object- 
lesson  of  value  is  the  famous  case  of  the 
Free  Church  of  Scotland  Appeals.  This 
we  can  read  at  length  in  Mr.  Orr's  reprint 
of  the  official  report.  You  remember  the 
facts.  A  strong  party  in  the  great  Free 
Kirk  which  had  issued  from  the  Disruption 
of  1843  had  laboured  under  the  leadership 
of  Principal  Rainy  to  promote  union  with 

1  Cf.  Ellen  Key,  Love  and  Marriage,  especially  chap, 
viii.,  "  Free  Divorce "  ;  and  The  Truth  about  Woman, 
C.  Gascoigne  Hartley.  These  two  works  alone  will 
show  the  reader  what  open  attacks  are  being  made 
on  every  element  of  morality. 


A  FREE  CHURCH  IN   A  FREE  STATE     19 

the  older  body,  the  United  Presbyterians. 
This  union  which  was  ultimately  effected 
was  resisted  by  a  small  body  known  as  the 
"  Wee  Frees,"  who  declared  the  amalgama- 
tion to  be  ultra  vires.  The  most  important 
of  the  contentions  on  their  side  were  as 
follows.  It  was  asserted  that  a  looser  inter- 
pretation was  being  given  to  the  formularies, 
and  that  to  desert  the  rigid  Calvinistic  doc- 
trine was  so  far  destroying  the  foundations, 
that  the  identity  of  the  Free  Kirk  in  the 
new  United  Free  would  not  be  maintained. 
Secondly,  it  was  alleged  that  Chalmers  and 
his  party,  while  objecting  to  certain  abuses 
in  the  Established  Kirk,  had  also  de- 
clared themselves  in  favour  of  the  prin- 
ciple of  Establishment,  and  that  this  was 
now  abandoned  through  the  union  with  the 
United  Presbyterians,  a  body  pledged  to 
voluntaryism.  These  contentions  were  held 
to  be  made  good  by  the  House  of  Lords, 
to  which  the  case  was  eventually  carried. 
In  other  words,  the  Act  by  which  the  union 
had  been  carried  was  condemned  as  ulti^a 
vires,  and  all  the  property  of  the  Free  Kirk 
was  adjudged  to  belong  to  the  small  com- 
munity  (or  Wee  Frees)  who  held  to  the 


20      CHURCHES  IN  THE  MODERN  STATE 

original  notions.  The  decision  seemed 
absurd  enough  from  the  practical  stand- 
point, but  its  results  in  Scotland  would 
have  been  tragic  had  the  judgment  been 
carried  out.  So  widespread  was  the  dis- 
content that  an  Act  of  Parliament  was  at 
once  passed,  setting  up  a  body  of  com- 
missioners with  power  to  apportion  the 
property  in  such  proportions  as  might  be 
deemed  equitable  between  the  two  sections 
of  the  original  Free  Kirk,  and  without 
regard  to  the  recent  decision.  This,  how- 
ever, does  not  alter  the  fact  that  the  judg- 
ment of  the  House  of  Lords  expressed  the 
mind  of  English  lawyers  on  a  topic  of  such 
importance,  and  shows  us  how  they  would 
regard  all  claims  to  independent  life  on 
the  part  of  a  religious  body.  Since  these 
bodies  were  "  Free  Churches  "  the  question 
was  not  complicated  by  any  specifically 
limiting  consequences  of  State  establish- 
ment. The  problem  came  up  in  a  more 
universal  form,  and  the  decision  should 
serve  as  a  warning  to  those  who  think  that 
disestablishment  of  itself  would  save  all 
risk  of  inconvenient  action  on  the  part  of 
the  State.     How  far  the  "claim  of  right" 


A  FREE  CHURCH  IN  A  FREE  STATE     21 

originally  put  forward  may  have  affected 
the  issue  we  need  not  here  inquire.  What 
is  certain  is,  that  the  Lords  (with  the  ex- 
ception of  Lord  Macnaghten  ^  and  Lord 
Lindley)  found  themselves  unable  to  con- 
ceive the  notion  of  a  Church,  refusing  at 
any  moment  to  consider  more  than  the 
terms  of  the  trust.  Tacitly,  if  not  ex- 
plicitly, they  denied  any  real  and  inherent 
power  of  development ;  and  further,  so 
far  from   refusing   to   consider   theological 

^  Some  of  Lord  Macnaghten's  phrases  are  worthy  of 
citation  here.  "  The  question,  therefore,  seems  to  me 
to  be  this :  Was  the  Church  thus  purified — the  Free 
Church — so  bound  and  tied  by  the  tenets  of  the  Church 
of  Scotland  prevailing  at  the  time  of  Disruption,  that 
departure  from  these  tenets  in  any  matter  of  substance 
would  be  a  violation  of  that  profession  or  testimony 
which  may  be  called  the  unwritten  charter  of  her 
foundation,  and  so  necessarily  involve  a  breach  of  trust 
in  the  administration  of  funds  contributed  for  no  other 
purpose  but  the  suppoi-t  of  the  Free  Church — the 
Church  of  the  Disruption  ?  Was  the  Free  Church  by 
the  very  condition  of  her  existence  forced  to  cling 
to  her  Subordinate  Standards  with  so  desperate  a  grip 
that  she  has  lost  hold  and  touch  of  the  Supreme 
Standard  of  her  faith  ?  Was  she  from  birth  incapable 
of  all  growth  and  development  ?  Was  she  (in  a  word) 
a  dead  branch,  and  not  a  living  Church?" — Orr,  Free 
Church  oj  Scotland  Appeals,  \).  573. 


22      CHURCHES  IN  THE  MODERN  STATE 

questions,  they  listened  to  a  long  argument 
of  Mr.  [now  Lord]  Haldane  designed  to 
show  that  from  the  higher  Hegelian  stand- 
point Calvinism  and  Arminianism  were 
really  the  same  thing.  This  the  Lords 
were  forced  to  do  in  order  to  judge  whether 
or  no  the  new  Act  contravened  the  original 
trust.  Thus  on  the  one  hand  the  judg- 
ment denies  to  a  Free  Church  the  power 
of  defining  and  developing  in  its  own  doc- 
trine ;  and  on  the  other,  while  disclaiming 
interference  in  theological  matters,  it  prac- 
tically exercises  it  under  the  plea  of  con- 
sidering the  question  whether  or  no  the 
trust  had  been  violated.  If  the  real  life 
of  the  religious  body  had  been  admitted, 
the  question  as  to  whether  or  no  the  new 
theology  of  the  united  body  was  in  agree- 
ment with  that  of  the  old  Free  Kirk  would 
have  become  one  of  fact,  not  of  law,  and  in 
that  case  the  overwhelming  majority  in 
favour  of  the  union  would  probably  have 
been  sufficient  evidence.^  But  this  view 
was  not  taken. 

^  Mr.  Haldane — "  Well,  my  Lord,  my  argument  at 
your  Lordship's  bar  is  this,  that  if  you  ask,  what  is 
the  test  of  identity,  the  test  of  the  personal  identity 


A  FREE  CHURCH  IN  A  FREE  STATE    23 

Other  instances  yet  more  pertinent  to 
the  general  topic,  though  of  less  dangerous 
import  for  Englishmen,  may  be  cited  from 
more  than  one  Continental  State.  In  the 
two  cases  of  the  I^aw  of  the  Associations 
and  that  of  Separation  in  France,  we  have 

of  this  Church  lies,  not  in  doctrine,  but  in  its  life,  in  the 
continuity  of  its  life,  as  ascertained  by  the  fact  that 
the  majority  have  continuously  kept  on  doing  these 
things,  which  are  within  their  competence  accoi'ding 
to  our  opinion." — Orr,  p.  518, 

Again,  with  reference  to  the  claim  to  relax  the  terms 
of  subscription.  Lord  Macnaghten  goes  on  :  "  If  the 
Church  has  power  to  release  the  stringency  of  the 
formulae  required  from  her  ministers  and  office-bearers, 
so  as  to  avoid  offence  to  the  consciences  of  the  most 
conscientious  and  to  keep  within  her  fold  the  most  able 
and  enlightened  of  her  probationers,  that  is  all  that 
is  required.  That  she  has  that  power  I  cannot  doubt. 
These  formulae  were  imposed  by  Act  of  Parliament,  If 
they  owe  their  force  and  efficiency  in  the  Established 
Church  to  Acts  of  Parliament,  the  Free  Church  has 
rejected  the  ordinances  of  men  and  the  authority  of 
Parliament,  and  is  free  to  regulate  her  own  formula*. 
If  in  the  Established  Church  they  owe  this  force  wholly 
or  in  part  to  the  antecedent  I'ecognition  of  the  Church, 
the  Free  Church,  as  it  seems  to  me,  claiming  to 
act  and  recognised  by  her  adherents  as  acting  in 
the  character  of  a  national  Church,  and  proceeding 
regularly  in  accordance  with  the  constitution  of  the 
Church,  may  do  now  what  the  Church  did  in  the 
seventeenth  century." — Ihid.,  p.  576. 


24      CHURCHES  IN  THE  MODERN  STATE 

instances  of  State  tyranny  which  "jump 
to  the  eyes."  Under  the  former  the  pro- 
perty of  the  EngHsh  Benedictines  was 
confiscated,  although  they  had  settled  in 
France  for  a  perfectly  lawful  purpose  and 
on  the  faith  of  State  protection.  It  was 
made  criminal  for  men  or  women  to  live 
together  in  a  common  life  without  special 
leave  obtained  from  the  Government ;  and, 
as  we  know  now,  contrary  to  the  intention  of 
the  original  proposer,  that  leave  was  with- 
held in  almost  every  case  from  religious 
communities,  although  I  think  that  some 
exceptions  were  made  for  nursing  sisters. 
If  anyone  doubts  that  persecution  of  the 
most  definite  kind  was  practised  and  in- 
tended, I  would  suggest  that  he  should 
peruse  the  speeches  made  in  defence  of  the 
application  of  the  law  by  the  French 
Prime  Minister,  M.  Emile  Combes.  They 
are  published  under  the  title  Une  Campagjie 
Ldique,  prefaced  by  a  diatribe  from  M. 
Anatole  France.  True,  the  persecution  was 
not  of  religious  convictions  or  practices 
as  such,  but  of  all  associations  to  develop 
religion  in  a  communal  life,  on  the  ground, 
nominally,  that  such  unions  were  inimical 


A  FREE  CHURCH  IN  A  FREE  STATE    25 

to  the  omnipotence  of  the  State.  It  was 
more  than  the  assertion  of  the  theory 
(which  I  shall  try  later  to  explain),  known 
as  the  concession  theory  of  corporate  life, 
in  an  extreme  form ;  for  it  not  only 
denied  these  bodies  the  legal  position  of 
corporate  personalities,  but  it  denied  to  the 
individuals  composing  them  the  right  to 
live  together — and  as  a  fact  dissolved  and 
dispersed  the  monastic  houses.  Similar  in- 
stances of  State  interference  can  be  found 
in  the  details  of  the  Law  of  Separation ; 
although  not  in  the  principle  of  dissolving 
the  concordat  and  setting  the  Church  and 
the  State  apart. ^  The  new  law,  so  far  from 
recognising  the  rights  of  French  Catholics 
to  their  own  ecclesiastical  polity,  to  say  the 
least  leaves  it  doubtful.      The  property  of 

^  The  text  both  of  the  Associations  Law  of  I9OI 
and  the  Separation  Law  of  1905  will  be  found  in  the 
Appendix  to  Mr.  J.  E.  C.  Bodley's  two  lectures  on 
"  The  Church  in  France."  His  remarks  at  the  begin- 
ning of  Lecture  II  on  the  attitude  of  Frenchmen 
towards  the  principle  of  association  are  valuable.  Only 
I  would  suggest  that  the  dislike  which  he  speaks  of  is 
not  merely  the  product  of  the  individualism  of  the 
French  Revolution,  but  goes  right  back  to  the  genesis 
of  the  Latin  world,  of  Roman  Law,  and  the  Emperor 
Trajan. 


26      CHURCHES  IN  THE  MODERN  STATE 

each  parish  was  to  be  vested  in  an  associa- 
tion cultuelle ;  but  there  was  no  guarantee 
in  these  associations  for  that  episcopal 
government  alone  recognised  by  Catholics/ 
There  was  nothing  to  prevent  a  small  body 
of  malcontents  getting  hold  of  the  machine 
and  ousting  the  bishop  from  all  power.  It 
is  persistently  argued  that  the  Pope  was  ill- 
advised  in  repudiating  the  concessions  of 
the  Government  and  refusing  to  allow  the 
French  Catholics  to  accept  these  associations 
cultuelles.  I  do  not  presume  to  say  whether 
or  no  the  universal  outcry  against  the 
alleged  short-sightedness  of  Cardinal  Merry 
del  Val  was  justified.  For  it  may  be  that 
in  this,  as  in  other  instances,  it  might  have 
been  wise  for  the  sake  of  the  benefits  to 
admit  the  invasion  of  rights  ;  and  so  long  as 
the  loyalty  of  the  Catholics  was  assured, 
the   associations   might   have  worked  well 

^  It  is  a  question  how  far  the  qualifying  words  in 
Art.  41,  en  se  cojiformant  mux  regies  d' organisation  generate  du 
culte  dont  elles  se  proposent  d' assurer  V exercise,  really  would 
ensure  the  episcopal  government ;  for  Clause  8  contem- 
plates two  rival  associations,  and  grants  the  decision  to 
the  Council  of  State.  At  any  rate,  it  is  always  claimed 
on  the  Roman  Catholic  side  that  the  law  does  not  give 
adequate  security. 


A  FREE  CHURCH  IN  A  FREE  STATE     27 

enough.  But  I  am  certain  that  on  grounds 
of  theory  the  action  of  the  Pope  was  clearly 
justified,  provided  he  was  right  in  the  facts : 
"  So  long  as  it  should  not  be  legally  and 
certainly  evident,  that  the  Divine  Constitu- 
tion of  the  Church,  the  immutable  rights 
of  the  Roman  Pontiff  and  of  the  bishop, 
such  as  their  authority  over  the  necessary 
property  of  the  Church,  particularly  the 
sacred  edifices,  would  in  the  said  associations 
be  irrevocably  and  fully  secure."  That  is,  it 
denies  such  right  so  far  as  questions  of  the 
property  in  churches  are  concerned ;  while  I 
think  it  is  not  allowed  to  build  other  churches. 
But  this  is  not  all.  Since  the  Pope  refused 
to  accept  the  Law  of  Separation,  the  property 
is  actually  vested  in  the  Communes.  These 
local  authorities  are  bound  not  to  interfere 
with  the  religious  worship,  and  also  to  keep 
them  in  repair.  In  the  event  of  any  build- 
ing being  in  such  disrepair  that  it  is  unfit 
for  use,  they  may  close  it.  In  some  dis- 
tricts where  the  local  authorities  are  anti- 
Christian,  this  is  the  course  they  are  taking. 
Unable  by  law  to  close  the  churches  for 
worship,  they  are  refusing  to  repair  them, 
refusing  also  to  allow  the  Catholics  to  repair 


28      CHURCHES  IN  THE  MODERN  STATE 

them  at  their  own  expense,  while  no  other 
churches  can  be  built  without  their  leave. 
In  a  few  years'  time  they  will  be  able  to 
order  the  churches  to  be  closed  on  the 
ground  that  they  are  no  longer  fit  for  use. 
This  policy  is,  of  course,  not  universal ;  it  is 
said  to  be  only  applied  to  buildings  of  no 
architectural  merit,  and  it  would,  I  suppose, 
be  difficult  to  prove  against  the  Government 
as  a  whole.  But  it  is  only  a  further  instance 
of  the  definitely  persecuting  spirit  of  the 
French  Positivists,  which  indeed  goes  a 
great  deal  further  than  the  actual  law. 
During  the  debates  on  the  law  one  deputy 
openly  demanded  that  public  worship  should 
be  prohibited  in  the  cathedrals ;  and  another 
utterance  is  often  quoted,  "  We  have  extin- 
guished in  heaven  those  lights  which  men 
shall  never  light  again."  All  this  and 
further  facts  seem  to  me  clear  evidence  of  a 
definitely  organised  and  strongly  supported 
attempt  to  set  up  a  Positivist  Church  State, 
and  to  maintain  it  by  persecution.  This 
position  was  really  contemplated  by  Comte, 
and  awakened  thereby  the  abhorrence  of 
Mill,  who  on  other  grounds  admired  his 
system.     It  is  tacitly  admitted  by  M.  Emile 


A  FREE  CHURCH  IN  A  FREE  STATE     29 

Combes,  and  can  be  seen  also  at  work  in 
Portugal.  Such  dangers  may  seem  remote 
in  this  country,  and  its  real  hold  on  religion 
is  doubtless  far  stronger.  But  these  facts 
serve  to  show  the  absurdity  of  the  notion 
that  the  persecuting  spirit  is  confined  to 
believers  in  religion ;  while  some  arise 
definitely  from  the  dogma  of  the  omnipo- 
tence of  the  State. 

Another  instance  even  more  notable  was 
the  Kultur-kampf.  This  is  more  striking, 
because  it  is  a  case  in  which  the  strongest 
nineteenth- century  statesman  met  more  than 
his  match.  It  is  also  more  pertinent  to 
England,  because  it  was  concerned  not 
with  an  attempt  to  destroy  Christianity, 
but  rather  with  an  attempt  to  maintain 
one  particular  form  of  it,  and  that  the 
form  with  which  many  of  us  here  would 
most  sympathise.  Prince  Bismarck,  though 
himself  a  Protestant,  thought  that  he  saw 
in  the  old  Catholic  movement  a  hopeful 
opportunity  of  finally  destroying  the  power 
of  Rome  in  Germany.  The  Lutheran  re- 
volution was  only  partial,  and  there  never 
was  any  prospect  after  the  sixteenth  century 
of  its  winning  the  Catholic   States.     But 


30      CHUKCHES  IN  THE  MODERN  STATE 

now,  owing  to  the  relative  novelty  of  the 
doctrine  of  Papal  infallibility,  and  the  fact 
that  some  of  the  most  learned  and  influ- 
ential of  the  German-speaking  Catholics, 
e.g.  Dollinger  and  Strossmayer,  had  opposed 
the  definition,  there  seemed  a  fair  chance 
of  throwing  off  the  last  fetters  of  Roman 
authority.  The  old  Catholic  movement,  if 
sufficiently  supported  by  the  Government, 
might  absorb  all  the  Catholic  elements,  and 
a  new  Church,  if  not  Lutheran,  at  least  not 
Roman  and  entirely  the  instrument  of  the 
State,  would  result. 

The  conflict  spread  far.  The  famous  Falk 
or  Mai  Laws  were  passed  to  ensure  the 
victory  of  the  Government ;  bishops  and 
others  were  imprisoned  for  long  periods. 
But  all  in  vain.  Although  the  doctrine  of 
State  omnipotence  was  proclaimed  in  terms 
that  might  have  satisfied  INIachiavelli,  the 
convictions  of  German  Catholics  and  their 
loyalty  to  Rome  were  proof  against  all 
persecution ;  and  in  spite  of  saying  "  AVe 
will  not  go  to  Canossa,"  Prince  Bismarck 
was  eventually  forced  to  capitulate,  and  the 
Roman  Church  won  an  unqualified  triumph. 
The  details  of  the  conflict  do  not  concern 


A  FREE  CHURCH  IN  A  FREE  STATE    31 

us.  But  its  principles  do.  For  it  was  in 
the  most  naked  form  a  struggle  between  the 
believers  in  the  doctrine  of  State  absolutism 
and  those  who  held  by  the  right  of  a  religious 
society  to  form  its  own  rules  and  to  direct 
its  own  members.  The  fact  that  our  own 
sympathies  may  be  in  most  respects  with  the 
Old  Catholics  (as  against  the  preposterous 
Papal  absolutism)  should  in  no  way  blind  us 
to  the  real  issue  between  Bismarck  and  his 
opponents.  Indeed  no  one  who  believes  in 
liberty  of  conscience  can  do  other  than 
rejoice  at  the  most  astounding  catastrophe 
in  the  career  of  that  ever-victorious  states- 
man. I  would  recommend  that  you  should 
consult  in  this  subject  Nielsen's  History 
of  the  Papacy  in  the  Nineteenth  Century. 
Bishop  Nielsen's  standpoint  is  very  far  from 
being  Roman  Catholic,  but  he  makes  it 
quite  clear  to  any  reader  that  the  action  of 
the  Prussian  Government  was  unjustifiable 
and  in  the  strictest  sense  a  religious  perse- 
cution. 

I  mention  these  Continental  cases  because 
they  all  help  to  show  that  the  doctrine 
against  which  w^e  are  bound  to  struggle  is 
no  special  prejudice  of  the  English  mind, 


32      CHURCHES  IN  THE  MODERN  STATE 

but  that  it  is  a  part  of  the  common  heritage 
of  Europe,  and  is  indeed  probably  more 
acutely  defined  in  these  countries  where 
the  Roman  Civil  Law  has  been  for  cen- 
turies "  received."  Just  as  the  right  of 
the  religious  society  to  be  and  to  develop 
its  own  inherent  life  is  an  elementary  right 
common  to  all  political  society,  so  the  claim 
of  the  State  to  an  uncontrolled  and  ulti- 
mately to  an  arbitrary  authority  is  a  uni- 
versal claim,  and  is  not  merely  the  product 
of  our  peculiar  conditions  or  of  the  estab- 
lishment and  endowment  of  the  Church  of 
England.  At  the  same  time  it  may  be 
more  convenient  to  consider  the  topic 
mainly  from  the  standpoint  of  Englishmen, 
or  at  least  of  that  of  citizens  of  the  United 
Kingdom. 

Let  us  return  then  to  the  case  of  the 
Scotch  Churches.  Does  it  not  seem  as 
though  there  must  be  something  funda- 
mentally erroneous  in  a  decision  which 
proved  so  practically  unworkable  as  that 
of  the  House  of  Lords  ?  The  judgment,  it 
is  said,  could  have  been  executed  only  at  the 
cost  of  something  like  civil  war,  and  did  as 
a  matter  of  fact  produce  rioting  in  several 


A  FREE  CHURCH  IN  A  FREE  STATE     33 

places  before  the  settlement  was  made  which 
abrogated  it.  Apart  from  any  special  or 
technical  points,  what  we  find  in  this  case 
is  that  the  lawyers  refused  to  consider  the 
body  as  a  Church,  i.e.  as  a  society  with  a 
principle  of  inherent  life,  but  bound  it 
rigidly  by  the  dead  hand  of  its  original  docu- 
ments. They  construed  it  as  a  mechanism, 
not  as  an  organic  life.  The  actual  decision 
could  only  be  paralleled  if  an  English  Court 
had  chosen  to  adjudge  all  the  property  of 
the  English  Roman  Catholics  to  someone 
who  had  refused  to  submit  to  the  Vatican 
decrees  on  the  ground  that  they  were  ult?^a 
vires,  and  if  the  judgment  had  been  given 
after  a  discussion  in  court  of  the  meaning  of 
the  creed  of  Pope  Pius  V.  For,  as  we  saw, 
despite  their  protestations  to  the  contrary, 
we  find  the  judges  driven  to  discuss  those 
very  theological  topics  for  which  they  con- 
fessed themselves  to  be  unfitted.  Since  they 
refused  to  recognise  the  society  as  such,  but 
would  only  consider  the  trusts,  they  were 
unable  to  treat  these  questions  as  matters  of 
fact  and  take  the  opinion  of  the  officers  of 
the  Church  as  to  whether  or  no  they  were 
ultra  vires.     They  were  forced  in  spite  of 

c 


34      CHURCHES  IN  THE  MODERN  STATE 

tliemselves  to  go  into  the  question  of  the 
terms  of  the  trust  while  all  the  while  pro- 
fessedly neutral.  Thus  we  have  the  serio- 
comic spectacle  of  Lord  Haldane,  the 
translator  of  Schopenhauer,  with  his  acute 
metaphysical  genius,  nourished  on  Hegel's 
Encyldopddie,  endeavouring  to  place  the 
results  of  his  meditations  on  the  true  mean- 
ing of  the  Westminster  Confession  before 
the  characteristically  Anglo-Saxon  men- 
tality of  Lord  Halsbury  and  Lord  James 
of  Hereford.  Let  me  read  you  one  or  two 
passages : 

3Ir.  Haldane — Your  Lordship  is  assum- 
ing, if  I  may  respectfully  say  so,  an  anthropo- 
morphic conception  of  the  Supreme  Being. 
It  is  very  difficult  to  discuss  these  things, 
but  I  must  say  your  Lordship  is  really 
assuming  that  the  Supreme  Being  stands  to 
a  particular  man  in  the  relation  of  another 
man — a  cause  external  to  Him  in  space  and 
time  acting  in  space  and  time,  and  separate 
from  Him  as  one  thing  is  separate  from 
another.  The  whole  point  of  the  specu- 
lative teaching  has  been  that  this  is  not  so ; 
the  whole  point  of  the  Church  has  been 
that  that  is  a  totally  inadequate  conception, 


A  FREE  CHURCH  IN  A  FREE  STATE    35 

and  that  at  any  rate,  without  resorting  to 
any  explanation,  they  have  to  hold  the  two 
things  as  in  harmony  and  reconcilable. 

Lord  James  of  Hereford — Mr.  Haldane, 
till  you  told  me  so  I  had  not  the  slightest 
idea  that  I  was  conceiving  that. 

Mr.  Haldane — I  am  afraid,  my  Lord, 
theologians  would  deal  severely  with  your 
Lordship's  statement. 

Lord  James  of  Herefor^d — I  am  much 
obliged  to  you.^ 

When  we  find  English  secular  lawyers  in 
the  twentieth  century  endeavouring  to  de- 
cide between  legitimate  and  illegitimate 
"  developments  "  of  the  Westminster  Con- 
fession, we  feel  ourselves  almost  like  Alice 
in  Wonderland.  Only  it  is  the  wonderland 
of  fact — that  strangest  of  all  realities,  the 
legal  mind.^ 

1  Orr,  p.  504. 

2  The  Church  is  hke  an  organism ;  the  materials 
may  change,  and  there  may  be  metabolism  of  every 
item  of  which  it  consists,  and  yet  the  Church  goes  on 
preserving  its  organic  life  through  the  medium  of  its 
system  of  Church  government,  which  provides  for  a 
Supreme  Assembly,  supreme  in  that  matter  of  doctrine 
to  which  your  Lordship  referred,  and  which  I  agree 
was  a  distinctive  matter  of  doctrine  at  the  time  the 
Church  was  founded. — Orr,  p.  479. 


36      CHURCHES  IN  THE  MODERN  STATE 

If  we  try  to  get  behind  the  judgment  to 
the  minds  of  the  judges  and  the  conception 
of  law  which  dominates  them,  I  think  it 
will  be  found  that  its  failure  to  harmonise 
the  facts  lies  above  all  in  this — that  in  their 
view  the  Church  did  not  exist  at  all,  i.e. 
the  Church  as  a  living  social  union  of  men 
bound  together  by  specific  ties,  recruited 
by  definite  means,  and  acting  by  virtue  of 
an  inherent  spontaneity  of  life  which  is  not 
imposed  but  original,  which  though  it  may 
be  regulated  by  the  civil  authority  is  not 
derived  therefrom.  That  that  was  the  con- 
ception of  the  Kirk  in  the  mind  of  Chalmers 
is  unquestionable :  it  is  indeed  the  very 
irony  of  fate  that  a  body  formed  for  no 
other  purpose  but  to  maintain  a  passionate 
sense  of  corporate  freedom  should  be  de- 
clared by  the  Courts  of  Law  to  be  lacking 
in  that  very  quality  of  spontaneous  life 
which  the  fathers  of  the  Disruption  had 
gone  into  the  wilderness  to  assert.^     Now 

^  Every  point  they  have  been  contending  here, 
if  raised  iminediately  the  day  after  the  Disruption, 
would  have  stultified  what  those  who  brought  about 
the  Disruption  had  done. — Orr,  p.  479. 

Again,  My  Lords,  that  is  the  very  point  upon  which 
the  Disruption  took  place,  and  I  do  not  see  myself  how 


A  FREE  CHURCH  IN  A  FREE  STATE     37 

this  conception  is  not  merely  the  claim  of 
the  Scots  Free  Kirk ;  it  is  the  notion  of 
every  religious  sect  which  claims  for  itself 
toleration.  None  can  really  admit  that  its 
entity  is  derived  from  the  State.  It  is  the 
boast  of  the  Free  Churches  in  this  country 

my  learned  friends  could  have  maintained  their  con- 
tention at  the  Bar  without  being  in  the  view  of  the 
Free  Church  at  that  time  incapable  of  being  received 
into  its  membership  on  the  ground  that  they  were 
setting  up  that  very  interference  of  the  Civil  Courts  in 
spiritual  matters  which  the  Free  Church  had  broken  off 
from  the  State  in  order  to  assert  in  the  most  unqualified 
form. — Orr,  p.  492.  [The  word  ''assert"  is  surely 
wrong  here,  unless  a  clause  such  as  "  freedom  from 
which  "  be  understood  after  "  spiritual  matters."] 

One  cannot  conceive  that  the  Free  Church  meant 
when  it  came  out  that  their  synods  were  to  be 
at  the  call  of  the  Civil  Magistrate.  That  would  be 
totally  inconsistent  with  the  very  conception  of  their 
Church.  Their  synods  were  to  be  called  by  them- 
selves; Christ  is  the  only  Head.  To  be  at  the  call  of 
the  Civil  Magistrate  would  be  totally  inconsistent  Avith 
that  conception.  What  I  mean  is,  they  did  in  1846 
exactly  what  they  do  now.  They  proceeded  to  inter- 
pret the  Confession  of  Faith  in  a  way  which,  in  my 
view  of  it,  amounted  to  a  modification.  They  did  it  in 
1846,  and,  if  my  friend's  argument  is  right,  they  did  it 
at  the  risk  of  an  interdict  which  could  have  been 
obtained  the  next  day  from  the  Court  of  Session  to 
restrain  them  from  so  doing.     The  relevancy  of  that 


38      CHURCHES  IN  THE  MODERN  STATE 

that  they  have  secured  the  recognition  of 
this  right,  while  we  are  debarred  from  it, 
and  in  their  view  justly  debarred,  by  the 
accident  of  establishment.     But  this   case 

argument  is  this.  There  are  two  conceptions  of  this 
case  ;  one  is  that  in  1846  what  really  happened  was  that  a 
sum  of  money  was  gathered  together  and  pnt  upon  certain 
trusts  to  preach  a  certain  doctiine — the  doctrine  which  is 
contained  in  the  Confession  and  other  doctrines.  The 
other  view  is  this,  that  the  first  thing  they  did  when 
they  came  out,  as  a  result  of  their  controversy,  was  to 
establish  a  Church,  and  then  a  subsequent  step  was 
to  gather  together  the  property  for  the  use  of  that 
Church,  and  to  put  it  at  the  disposal  of  the  Church. 
— Orr,  p.  528. 

Again  (p.  531) :  It  was  the  element  of  the  Church  to 
determine  the  question  of  doctrine,  and  the  Civil  Court, 
which  had  the  civil  authority,  was  bound  to  accept  the 
interpretatiofi  which  the  contract  assigns  to  the  Church 
exclusively. 

Suppose  somebody  in  1846  had  said:  ''No,  you 
had  no  business  to  put  in  these  words  about  per- 
secuting principles,"  can  it  be  for  a  moment  supposed 
that  the  Free  Church  would  have  considered  that  the 
Court  was  intended  by  their  constitution  to  have  had 
jurisdiction  to  discuss  that  question .''  They  would 
have  said  :  "  No ;  the  very  thing  for  which  we  came  out 
was  to  get  independence  of  the  decision  of  this  Court 
on  this  question  of  doctrine,  and,  so  far  as  property 
comes  in,  our  property  was  accumulated  after  we  had 
become  a  Church,  and  was  intended  to  be  held  at  the 
disposition  of  the  Church,  constituted  with  these 
powers  of  legislative  independence  "  (p.  534). 


A  FREE  CHURCH  IN  A  FREE  STATE    39 

shows  how  illusory  is  this  notion.  I  think 
indeed  that  we  must  admit  that  no  estab- 
lished Church  can  claim  quite  the  same 
liberty  as  one  non-established.  But  my 
point  is  that  in  the  existing  state  of  the 
law  there  is  no  security  that  neither  the  one 
or  the  other  will  really  be  allowed  this 
liberty  when  it  comes  to  the  pinch.  I  think 
we  must  agree  that  our  Church,  so  long  as 
she  is  established,  cannot  in  reason  claim 
the  whole  of  the  halfpence  ;  that  to  demand 
an  entire  independence  of  the  State  while 
enjoying  peculiar  privileges  is  neither  right 
nor  prudent.  Yet,  on  the  other  hand, 
neither  should  it  get  all  the  kicks,  as  the 
poor  Church  of  England  seems  likely  to  do 
in  the  present  state  of  the  public  mind. 

What  really  concerns  us  is  not  so  much 
whether  or  no  a  religious  body  be  in  the 
technical  sense  established,  but  whether  or 
no  it  be  conceived  as  possessing  any  living 
power  of  self-development,  or  whether  it 
is  conceived  either  as  a  creature  of  the  State, 
or  if  allowed  a  private  title  is  to  be  held 
rigidly  under  the  trust-deeds  of  her  founda- 
tion, thereby  enslaved  to  the  dead.  Not 
indeed  that  all  change  should  be  taken  as 


40      CHURCHES  IN  THE  MODERN  STATE 

admissible,  but  that  tiiose  changes  sanc- 
tioned (as  was  this)  by  the  constitutional 
authority  of  the  Church,  and  declared  by 
them  to  be  in  accordance  with  the  spirit 
of  their  society,  should  be  accepted  as  such 
by  the  courts,  and  no  further  question 
asked.  In  other  words,  is  the  life  of  the 
society  to  be  conceived  as  inherent  or 
derived  ?  Does  the  Church  exist  by  some 
inward  living  force,  with  powers  of  self- 
development  like  a  person  ;  or  is  she  a  mere 
aggregate,  a  fortuitous  concourse  of  ecclesi- 
astical atoms,  treated  it  may  be  as  one  for 
purposes  of  convenience,  but  with  no  real 
claim  to  a  mind  or  will  of  her  own,  except 
so  far  as  the  civil  power  sees  good  to  invest 
her  for  the  nonce  with  a  fiction  of  unity  ? 

Since,  as  a  fact,  religious  bodies  are  only 
one  class  of  a  number  of  other  societies,  all 
laying  claim  to  this  inherent  life,  it  is  clear 
that  the  question  concerns  not  merely 
ecclesiastical  privilege,  but  the  whole  com- 
plex structure  of  civil  society  and  the 
nature  of  political  union.  It  cannot  be  too 
often  repeated,  that  the  primary  question  at 
issue  is  no  narrow  quibble  of  a  few  bigoted 
clergy  and  ecclesiastically-minded  laymen, 


A  FREE  CHURCH  IN  A  FREE  STATE    41 

but  has  to  do  with  the  quality  of  all  persons 
other  than  natural  persons  in  the  nation/ 
Are  corporate  societies  to  be  conceived  as 
real  personalities  or  as  fictitious  ones,  i.e.  is 
their  union  to  be  throughout  of  such  a 
nature  that  it  has  a  life  greater  than  the 
mere  sum  of  the  individuals  composing  the 
body;  that  it  is  not  merely  a  matter  of 
contract ;  that  in  action  it  has  the  marks  of 
mind  and  will  which  we  attribute  to  person- 
ality ;  that  this  corporate  life  and  personality 
grows  up  naturally  and  inevitably  out  of 
any  union  of  men  for  permanent  ends,  and 
is  not  withheld  or  granted  at  the  pleasure 
of  the  State?  Of  course  the  State  may 
and  must  require  certain  marks,  such  as 
proofs  of  registration,  permanence,  consti- 
tution, before  it  recognises  the  personality 
of  societies,  just  as  it  does,  though  in  a  less 
degree,  in  the  case  of  individuals ;  and  the 
complex  nature  of  the  body  may  necessitate 
a  more  complex  procedure.     Also  the  State 

^  Cf.  Gierke,  Das  Wesen  des  Menschlichen  Verb'dnde, 
p.  10:  "  Siiid  vielleicht  die  menschlichen  Verbande 
reale  Einheiten,  die  mit  der  Anerkennung  ihrer  Person- 
lichkeit  durch  das  Recht  nur  das  empfangen,  was  ihrer 
wirklichen  BeschafFenheit  entspricht  ?  " 


42      CHURCHES  IN  THE  MODERN  STATE 

will  have  to  regulate  and  control  the 
relations  of  corporate  persons  to  one  another 
and  to  natural  persons.  But  all  this  does 
not  and  need  not  imply  that  corporate 
personality  is  the  gift  of  the  sovereign,  a 
mere  name  to  be  granted  or  withheld  at  its 
pleasure ;  and  that  permanent  societies  can 
come  into  being  and  go  on  acting  without 
it.  It  is,  in  a  word,  a  real  life  and  person- 
ality which  those  bodies  are  forced  to  claim, 
which  we  believe  that  they  possess  by  the 
nature  of  the  case,  and  not  by  the  arbitrary 
grant  of  the  sovereign.  To  deny  this  real 
life  is  to  be  false  to  the  facts  of  social 
existence,  and  is  of  the  same  nature  as  that 
denial  of  human  personality  which  we  call 
slavery,  and  is  always  in  its  nature  unjust 
and  tyrannical. 

Yet  this  denial  is  the  notion  dominant 
to-day  in  modern  Europe,  and  is  the  pre- 
supposition of  the  average  legal  arrange- 
ments, although  it  is  beginning  to  decay. 
Into  the  origin  of  this  claim  to  State 
absolutism,  with  its  attendant  denial  of  all 
corporate  existence  other  than  fictitious,  we 
shall  inquire  next  time.  But  what  I  want 
to  make  clear  to-day  is,  that  this  notion  is 


A  FREE  CHURCH  IN  A  FREE  STATE     43 

well-nigh  universal,  that  it  is  precisely  one 
which  no  religious  society  can  admit  with- 
out being  false  to  the  very  idea  of  its 
existence,  or  placing  the  Divine  Law  at  the 
mercy  of  political  convenience. 

From  these  instances  which  I  have 
named  (and  others  are  probably  familiar 
to  you)  it  seems  clear  that  the  moment 
the  religious  body  begins  to  act  as  though 
it  had  any  inherent  life,  it  is  liable  to  be 
hauled  up  in  the  courts  and  to  be  con- 
demned as  having  acted  ultra  vires.  In 
the  case  of  our  own  Church,  there  are  many 
further  evidences  of  the  disinclination  of 
average  opinion  to  admit  that  the  Church 
has  any  real  social  entity  or  any  standard 
either  of  doctrine  or  discipline,  except  that 
of  the  nation  at  large.  Recent  discussions 
illustrate  this.  The  action  of  the  Bishop 
of  Hereford  in  publicly  inviting  Dissenters 
to  receive  the  Holy  Communion  has  been 
the  occasion  of  a  widespread  debate  on  the 
Confirmation  Test.  Whether  or  no  there 
may  not  be  something  to  be  said  for  such 
a  dispensation  from  the  rubric  on  a  great 
national  occasion,  I  shall  not  inquire.  But 
what  has  been  noteworthy  throughout  the 


44      CHURCHES  IN  THE  MODERN  STATE 

discussion  is  this.  At  bottom  there  lay  the 
claim,  that  there  ought  to  be  no  rules  at 
all  about  communion ;  that  every  Enghsh- 
man  who  desired  had  a  right  to  partake  of 
our  altars  ;  and  that  for  the  religious  society 
to  claim  any  powers  of  exclusion  is  pre- 
posterous. 

Similar  claims  have  been  put  forward  in 
doctrinal  matters.  A  certain  book^  has 
raised  acutely  the  question  of  the  ethics  of 
uniformity.  The  question  was  not  merely 
argued,  as  it  might  have  been,  on  the 
ground  that  the  particular  claims  put  for- 
ward were  allowable,  or  that  the  individual 
miracles  were  only  accidental.  On  the  con- 
trary, a  further  claim  was  put  forward  to  an 
entire  freedom  in  historical  criticism,  which 
is  logically  destructive  of  any  claim  of 
Christianity  to  be  an  historical  rehgion.  If 
the  principles  put  forward  were  carried  out 
there  would  not  be  the  smallest  ground 
for  objecting  to  a  clergyman  disbelieving 
not  only  the  miraculous  but  all  the  other 
elements  in  the  Gospel  narrative;  and  we 

1  Miracles  in  the  New  Testament,  by  Rev.  J.  Thompson. 
I  sjDcak  here  of  the  defenders,  not  the  writer  of  this 
work. 


A  FREE  CHURCH  IN  A  FREE  STATE    45 

might  hope  to  see  followers  of  Professor 
Drews  one  day  seated  in  the  chair  of  St. 
Augustine.  Nor  indeed  could  this  freedom 
once  granted  be  confined  to  historical  criti- 
cism ;  it  would  have  to  be  extended  to  ethical 
and  philosophical  topics.  The  same  liberty 
could  justly  be  claimed  for  some  followers 
of  Nietzsche,  who  believe  that  the  upward 
development  of  humanity  can  only  come 
from  the  destruction  of  Christian  ethics ; 
or  from  some  disciple  of  Comte,  who  desired 
a  system  ethically  Christian  but  entirely 
bounded  by  this  world. 

The  hopeless  confusion  of  thought 
between  the  right  of  the  individual  to 
choose  for  himself  and  his  right  to  remain 
in  a  society  pledged  to  one  thing  while  he 
himself  is  pledged  to  the  opposite  would 
be  incredible  were  it  not  so  widespread, 
and  would  be  the  death-blow  of  all  the 
political  clubs  that  ever  existed.  No  one 
would  claim  the  right  of  being  president 
of  a  Tariff  Reform  club,  while  desiring  to 
propagate  Free  Trade.  Yet  precisely  the 
same  is  claimed,  at  least  by  implication,  in 
all  these  discussions  about  free  criticism. 
The  ground  of  this  confusion  is  the  absolute 


46     CHURCHES  IN  THE  MODERN  STATE 

lack  of  any  sense  that  the  Church  has  a 
reaUty  and  life  of  her  own ;  that  she  means 
something.  Otherwise  claims  so  prepos- 
terous would  not  be  thought  of. 

Somewhat  similar  objections  lie  at  the 
bottom  of  the  dislike  of  denominational 
education.  Only  here  the  objection  comes 
not  so  much  from  failure  to  perceive  the 
fact  as  from  the  acute  perception  of  it, 
combined  with  equally  acute  dislike.  The 
speeches  of  Dr.  Clifford  have  all  along  been 
perfectly  consistent  and,  from  his  stand- 
point, justifiable.  They  are  the  clearest 
expressions  of  a  view  which  is  dominant  in 
the  greater  part  of  the  undenominationalist 
camp.  What  Dr.  Clifford  dislikes  is  the 
fact  that  denominationalism  means  the 
recognition  of  the  religious  society  as  such 
in  the  matter  of  education ;  what  he  de- 
mands is  that  there  shall  be  no  intermediary 
between  the  State  and  the  child.  Passionate 
as  he  is  in  his  expression,  his  meaning  is 
always  clear;  the  claims  alike  of  the 
religious  body  and  of  the  family  are  to  be 
set  aside  or  rather  denied ;  and  the  child 
(if  he  be  come  of  poor  parents)  is  to  be 
treated  in  this  matter  as  belonging  to  the 


A  FREE  CHURCH  IN  A  FREE  STATE    47 

State  alone.  No  other  society  is  to  be 
tolerated;  and  therefore  the  "right  of 
entry"  of  its  officers,  i.e.  the  priest,  is  to 
be  withheld,  and  all  distinctively  denomi- 
national education  is  to  be  abolished.  It 
is  all  lucid,  logical,  and  deliberate ;  and  it 
springs  quite  naturally  from  that  passion 
for  State  absolutism  which  is  the  child  of 
the  Renaissance  and  Reform  and  the  grand- 
child of  the  Pagan  State. 

Now  the  State  did  not  create  the  family, 
nor  did  it  create  the  Churches  ;  nor  even 
in  any  real  sense  can  it  be  said  to  have 
created  the  club  or  the  trades  union ;  nor  in 
the  Middle  Ages  the  guild  or  the  religious 
order,  hardly  even  the  universities  or  the 
colleges  within  the  universities :  they  have 
all  arisen  out  of  the  natural  associative  in- 
stincts of  mankind,  and  should  all  be  treated 
by  the  supreme  authority  as  having  a  life 
original  and  guaranteed,  to  be  controlled 
and  directed  like  persons,  but  not  regarded 
in  their  corporate  capacity  as  mere  names, 
which  for  juristic  purposes  and  for  these 
purposes  only  are  entitled  persons.  As  a 
matter  of  fact,  in  England  at  least,  it  is 
these  smaller  associations  which  have  always 


48      CHURCHES  IN  THE  MODERN  STATE 

counted  for  most  in  the  life  of  the  indi- 
vidual. His  school  or  college,  his  parish  or 
county,  his  union  or  regiment,  his  wife  or 
family  is  the  most  vitally  formative  part  in 
the  life  of  most  men ;  and  in  so  far  as  Eng- 
land has  anything  worthy  in  civic  life  to  show 
to  the  world,  it  is  the  spectacle  of  individuals 
bred  up  or  living  within  these  small  asso- 
ciations which  mould  the  life  of  men  more 
intimately  than  does  the  great  collectivity  we 
call  the  State.  Nor  are  they  mere  slices  of 
government  departments,  but  in  fact,  if  not 
in  theory,  are  infinitely  diverse,  and  even 
where  pledged  to  the  same  ends  has  each 
its  own  individuality,  its  own  ?;0o?,  which 
breathe  a  spirit  not  of  to-day  nor  yesterday, 
but  of  the  long  line  of  famous  men  who 
have  shared  in  this  common  life  and  handed 
down  enriched  the  treasure  of  a  great  and 
living  tradition.  Which  of  us  has  not  been 
thrilled  by  that  wonderful  commemoration 
lesson,  "  Let  us  now  praise  famous  men  and 
our  fathers  that  begat  us  "  ?  Which  of  us 
is  not  moved  by  loyalty  and  an  affection 
that  seems  independent  of  circumstances  to 
one  or  other  of  these  venerable  institutions 
which,  so  far  from  hindering,  fosters  and 


A  FREE  CHURCH  IN  A  FREE  STATE    49 

develops  his  loyalty  to  the  great  "society 
of  societies  "  we  call  the  State ;  and  which 
of  us  would  not  be  more  than  scandalised  to 
be  told  that  this  common  life  had  no  reality 
at  all  or  meaning,  but  that  it  was  merely 
the  contractual  union  of  a  number  of  indi- 
viduals, whose  individuality  was  in  no  way 
changed  by  these  social  bonds,  and  were 
each  of  them  purely  independent  and 
atomic — so  that  social  life  is  like  a  heap  of 
sand,  rather  than  a  living  being  ?  And  yet 
this  is  the  inevitable  and  logical  consequence, 
if  not  in  practice  at  least  in  theory,  of  that 
doctrine  of  the  State  in  its  relation  to 
smaller  societies  which  is  not  merely  preva- 
lent as  an  opinion,  but  is  the  only  doctrine 
even  conceivable  in  the  mind  of  the  average 
lawyer. 

What  I  have  tried  in  this  lecture  to 
make  clear  is  this :  that  we  are  divided 
from  our  adversaries  by  questions  of  prin- 
ciple, not  of  detail ;  that  the  principle  is 
concerned  not  with  the  details  of  ecclesias- 
tical privilege  or  with  the  special  position  of 
an  Established  Church,  but  with  the  very 
nature  of  the  corporate  life  of  men,  and 

D 


50     CHURCHES  IN  THE  MODERN  STATE 

therefore  with  the  true  nature  of  the  State  ; 
that  the  very  least  we  can  claim  as  a  re- 
ligious body  is  more  than  will  be  admitted 
by  the  other  side ;  for  it  is  most  true,  as  I 
once  heard  an  eminent  mathematician  de- 
clare, that  "the  English  people  have  not 
yet  realised  the  idea  of  a  Church."  At  the 
same  time  there  is  hope ;  not  only  are  the 
clouds  of  prejudice  around  us  dissolving, 
and  the  greatest  of  historical  jurists,  Gierke, 
Maitland,  and  others,  inculcating  a  more 
real  view  of  the  nature  of  the  corporate 
life ;  but  from  many  sides  and  causes  in- 
fluences are  tending  to  help  us  in  our 
struggle,  if  we  will  only  use  them  rightly. 
In  Church  matters,  now  that  the  conflict  is 
passing  from  one  on  matters  of  ritual  to 
questions  which  concern  the  deepest  facts 
of  social  life,  we  shall  have  many  willing  to 
make  common  cause  with  us  who  pre- 
viously were  disposed  to  be  contemptuous 
of  what  appeared  a  mere  partisan  conflict. 
Such  cases  as  I  have  cited  are  serving  to 
indicate  that  free  Churches  are  not  so  free 
as  they  supposed,  so  long  as  this  doctrine  of 
State  omnipotence  remains  unconquered, 
and  we  may  find  supporters  where  we  least 


A  FREE  CHURCH  IN  A  FREE  STATE     51 

expect  it ;  while  other  matters  of  social  and 
economic   importance  are  clearly  involved 
which  will  serve  to  show  that  in  fighting 
their  own  battles  religious  bodies  are  fight- 
ing  the  battle   of  a   healthy  national  life 
and  alone  providing  the  framework  under 
which  the  perennial  social  instincts  of  men 
can  develop,  and  instead  of  a  scientific  mon- 
strosity (that  of  the  omnipotent  State  facing 
an  equally  unreal  aggregate  of  unrelated  in- 
dividuals) we  may  look  for  a  land  covered 
with  every  kind  of  social  life,  functioning 
not  only  in  matters  religious,  intellectual, 
artistic,  but  also  in  the  most  necessary  form 
of  industrial  and  manufacturing  and  even 
agricultural  activity,  and  each  receiving  its 
due  place  as  a  living  member  of  the  body 
politic,  recognised  as  a  real  self-developing 
unity.     It  is  because  the  ground  on  which 
we  stand  is  nothing  narrow  or  mean,  but  is 
the  only  security  for  true  social  liberty,  and  is 
eminently  congruous  with  English  life,  that 
I  am  persuaded,  that  however  long  or  bitter 
is  the  conflict,  victory  in  the  long  run  is 
certain.     Liberty  in  England  is  a  far  more 
popular  cry  than  equality,  and  it  is  with 
liberty  that  we  are  concerned.     More  and 


52      CHURCHES  IN  THE  MODERN  STATE 

more  is  it  clear  that  the  mere  individual's 
freedom  against  an  omnipotent  State  may- 
be no  better  than  slavery;  more  and  more 
is  it  evident  that  the  real  question  of  free- 
dom in  our  day  is  the  freedom  of  smaller 
unions  to  live  within  the  whole.  More 
and  more  must  we  have  on  our  side  all  who 
are  not  dazzled  by  the  cry  of  efficiency  or 
sunk  into  that  un-Christian  materialism 
which  has  been  the  consequence  in  the  more 
comfortable  classes  of  the  long  security  of 
England  and  her  vast  wealth.  Freedom,  if 
rightly  pursued,  is  no  petty  nor  merely 
clerical  ideal ;  it  is  the  noblest  of  all  the 
watchwords  that  appeal  to  man,  because 
in  the  last  resort  it  always  means  that 
man  is  a  spiritual  being.  However  un- 
fashionable this  ideal  has  grown  in  our 
generation,  pushed  out  on  the  one  hand  by 
the  passion  for  getting,  on  the  other  by  the 
abject  need  of  better  economic  conditions,  it 
never  can  permanently  disappear,  and  we 
may  say  to  our  opponents,  in  the  words  of  a 
famous  speech  :  "  Those  great  forces  which 
the  tumult  of  our  debates  may  not  for  one 
moment  impede  or  disturb ;  those  great 
forces  are  against  you  ;  they  are  marshalled 


A  FREE  CHURCH  IN  A  FREE  STATE    53 

on  our  side  ;  and  the  banner  which  we  now 
carry  in  this  fight,  though  it  may  for  a 
moment  droop,  yet  it  will  still  once  more 
float  aloft  in  the  eye  of  heaven,  and  carry 
us,  if  not  to  an  easy,  at  least  to  a  certain 
and  a  not  distant  victory." 


LECTURE   II 

THE   GREAT    LEVIATHAN 

We  have  seen  that  the  refusal  of  many- 
lawyers  to  recognise  in  Churches,  as  such, 
any  real  rights  of  life  and  development  is 
widespread  and  inveterate  ;  that  it  cannot 
be  attributed  merely  to  anti- clerical  pre- 
judice, strong  though  that  has  always  been 
in  the  profession,  for  it  is  based  on  principles 
which  must  also  deny  the  similar  right  to 
other  non-religious  societies.  We  have  seen 
also  that  it  is  not  specially  English,  but 
European,  and  that  it  is  of  the  nature  rather 
of  an  unconscious  presupposition  than  a 
mere  theory.  For  those  holding  the  cur- 
rent view  seem  almost  unable  to  conceive 
what  Churchmen  mean  by  claiming  any 
freedom  for  religious  bodies.  Thus  it  would 
appear  that  the  causes  of  this  antipathy  are 
not  new,  and  that  we  must  seek  for  the  his- 
torical origin  of  this  prejudice  far  back  in 


THE  GREAT  LEVIATHAN  55 

history.  It  will  be  the  purpose  of  this 
lecture  to  try  and  show  how  it  arose,  and 
to  urge  that  it  relates  originally  to  a  condi- 
tion long  since  passed  away,  and  that  we 
ought  to  demand  a  view  of  politics  which 
has  more  vital  relation  to  the  facts,  instead 
of  what  is  little  more  than  an  abstract  theory 
deduced  from  the  notion  of  unity.  In  this 
lecture,  and  indeed  in  the  whole  course,  I 
cannot  overestimate  my  debt  to  that  great 
monument,  both  of  erudition  and  profound 
thought,  the  Das  Deutsche  Genossenschafts- 
recht  of  Dr.  Otto  Gierke.  A  very  small 
portion,  by  no  means  the  most  valuable, 
was  translated  by  JNIaitland,  and  his  Intro- 
duction forms  an  almost  indispensable  pre- 
liminary to  this  study.  But  it  is  greatly 
to  be  wished  that  sombody  would  translate 
the  whole  of  Gierke's  three  volumes,  or  at 
least  the  last.  Another  work  of  Dr.  Gierke, 
Die  Genossenschafts  Tlieorie,  is  less  well 
known  in  England,  but  it  is  worth  studying. 
There  it  is  attempted  to  show  how  under 
the  facts  of  modern  life  the  civilian  theory 
of  corporations  is  breaking  down  on  all 
hands,  and  that  even  in  Germany,  in  spite 
of  the  deliberate  adoption  of  the  Romanist 


56      CHURCHES  IN  THE  MODERN  STATE 

doctrine,  the  courts  and  sometimes  even 
the  laws  are  being  constantly  driven  to 
treat  corporate  societies  as  though  they 
were  real  and  not  fictitious  persons,  and 
to  regard  such  personality  as  the  natural 
consequence  of  permanent  association,  not 
a  mere  mark  to  be  imposed  or  withheld  by 
the  sovereign  power.  The  value  of  all  these 
books  is  the  greater  for  our  purpose  that 
they  are  in  no  sense  ecclesiastical  in  tone, 
and  that  the  English  introduction  was  the 
work  of  one  who  described  himself  as  a 
"dissenter  from  all  the  Churches."  More 
directly  concerned  with  ecclesiastical  liberty, 
but  at  the  same  time  universal  in  applica- 
tion, are  some  of  the  essays  by  Acton  in 
the  volume  on  "  Freedom." 

That  the  problem  is  really  concerned  with 
the  liberty  alike  of  the  individual  and  of  the 
corporate  society,  is  best  proved  by  such 
words  as  those  of  M.  Emile  Combes  :  "  There 
are,  there  can  be  no  rights  except  the  right 
of  the  State,  and  there  are,  and  there  can 
be  no  other  authority  than  the  authority  of 
the   Republic."^      Nowhere,    perhaps,    has 

^  This  was  stated  in  an  article  in   The  Independent 
Review,  September  1905. 


THE  GREAT  LEVIATHAN  57 

the  creed  of  materialist  politics  been  ex- 
pressed with  such  naked  cynicism.  Such 
a  doctrine,  if  accepted,  lies  at  the  roots  of 
all  higher  morality  and  all  religious  freedom. 
It  is  the  denial  at  once  of  the  fact  of  con- 
science, the  institutions  of  religion  and  the 
reality  of  the  family.  That  this  is  the 
direction  in  which  the  forces  represented  by 
M.  Combes  would  wish  to  drive  Europe  is 
clear  from  many  circumstances.  And  though 
for  the  nonce  this  orgy  of  State  absolutism 
may  be  restrained  by  certain  surviving  in- 
stitutions of  freedom  and  by  the  facts  of 
human  life,  the  words  here  quoted  show  the 
danger  those  are  in  who  surrender  them- 
selves blindly  to  those  forces,  which  from 
Machiavelli  through  Hobbes  and  Bodin 
have  come  to  be  dominant  in  politics,  and 
are  at  this  moment  dangerously  ascendant 
owing  to  the  horror  of  that  very  economic 
and  industrial  oppression  which  is  the  distinc- 
tive gift  of  modern  capitalism  to  history.  In 
this  country,  however,  few  are  likely  to  go 
quite  so  far  as  M.  Combes.  Owing  partly 
to  the  continuance  of  ideas  that  have  come 
down  from  the  Middle  Ages,  partly  to  the 
struggles   of  the  seventeenth  century,  the 


58      CHURCHES  IN  THE  MODERN  STATE 

notion  of  individual  liberty  is  very  strong. 
Individual  rights  of  conscience  are  recog- 
nised— even  in  such  matters  as  public  health. 
And  though  there  are  not  wanting  indica- 
tions that  this  sentiment  is  very  much  on 
the  wane,  it  is  still  the  case,  that  so  far 
as  principle  goes,  few  English  statesmen 
could  deny  the  authority  of  the  individual 
conscience.  At  the  same  time,  utterances 
like  those  of  M.  Combes  and  certain  move- 
ments violent  at  this  moment  in  England 
should  prevent  our  being  too  certain  in  this 
matter.  Entire  capitulation  to  this  prevail- 
ing tendency  to  deify  the  State,  if  only  in 
the  matter  of  corporate  institutions,  will 
in  the  long  run  be  no  more  favourable  to 
individual  liberty  than  the  so-called  "  free- 
labour"  movement  organised  by  capitalists 
is  likely  to  be  to  the  economic  freedom 
of  the  artisan  classes.  Yet  our  concern,  as 
1  showed  last  time,  is  not  with  individual, 
but  rather  with  corporate  liberty. 

And  here  I  have  no  doubt  that  objections 
will  be  raised.  How,  it  will  be  asked,  can 
you  say  that  we  need  to  do  battle  for 
the  rights  of  corporations  when  already  the 
country  is   groaning   under   their  tyraimy, 


THE  GREAT  LEVIATHAN  59 

and  the  law  of  limited  companies  is  the 
cover  under  which  is  carried  every  form 
of  that  exploitation  which,  if  conducted 
by  millionaires,  is  known  as  "  high  finance," 
and  if  practised  by  their  clerks  is  called  by 
a  different  name  ?  I  am  not  denying  that 
corporate  societies  exist,  or  that  they  exist  in 
large  numbers  ;  no  complex  state  of  civilisa- 
tion can  exist  without  this  phenomenon 
appearing ;  and  if  it  appears,  the  law  must 
somehow  or  other  take  account  of  it.  What 
is  wrong  is  not  the  fact  but  the  nature  of 
existence  allowed  to  these  bodies  in  legal 
theory.  Any  corporate  body,  in  the  ordinary 
and  not  the  technical  sense,  of  a  society  of 
men  bound  together  for  a  permanent  interest 
inevitably  acts  with  that  unity  and  sense  of 
direction  which  we  attribute  to  personality. 
The  question  is,  how  is  this  personality  to 
be  conceived?  Is  it  a  natural  fact,  the 
expression  of  the  social  union ;  or  is  it 
merely  something  artificial  imposed  upon 
the  body  for  its  own  convenience  by  the 
State?  Is  it  real  or  fictitious,  this  legal 
personality  ?  Under  the  dominant  theory 
the  corporate  person  is  a  fiction,  a  nomen 
juiis ;  in  order  that  societies  of  men  may 


60      CHURCHES  IN  THE  MODERN  STATE 

be  able  to  act,  to  hold  property,  to  sue  and 
be  sued,  it  is  necessary  to  treat  them  as 
what  they  are  not,  i.e.  as  persons;  therefore 
the  sovereign  power  by  its  own  act  grants 
to  such  bodies  as  it  pleases  the  name  of 
corporation,  and  with  it  endows  them  with 
a  *'  fictitious  "  personality  ;  since,  however, 
it  is  a  mere  matter  of  convenient  imagina- 
tion on  the  part  of  the  law,  and  corresponds 
to  no  reality  in  the  collective  body,  its  entire 
genesis  and  right  are  merely  a  delegation  of 
the  sovereign  authority.  All  corporations 
owe  their  existence  to  a  grant  or  conces- 
sion of  the  State,  tacit  if  not  express,  which 
may  be  given  or  withheld.  Other  societies, 
if  they  exist  at  all,  are  purely  contractual, 
and  have  no  such  power  of  suing  or  being 
sued.  They  are  collegia  or  societates,  not 
"universities."  The  Romans  approached, 
though  they  did  not  entirely  reach,  this 
position.^    The  final  word  was  really  said  by 

1  So  wurde  schliesslich  die  romische  Jurisprudenz 
unabweislich  zu  der  Annahme  gedrangt,  dass  die  Per- 
sonlichkeit  der  Universitas — eine  Fiktion  sei.  Zwar 
haben  die  Romer  diesen  Gedanken  weder  mit  Einem 
Schlage  noch  iiberhaupt  im  voller  Scharfe  formulirt, 
geschweige  denn  iiber  Natur  und   Inhalt  dieses  Fik- 


THE  GREAT  LEVIATHAN  61 

the  great  canonist  Sinibaldo  Fieschi,  after- 
wards Pope  Innocent  IV.  With  the  large 
number  of  cathedral  chapters  and  religious 
orders  in  the  Church,  it  became  very  neces- 
sary to  arrive  at  clear  views  on  the  matter, 
and  Innocent  IV,  starting  from  the  doctrine 
of  the  civil  law  as  to  the  nature  of  sovereign 
power  and  the  rights  of  individuals,  came 
quite  definitely  to  the  view  that  it  was 
necessary  to  call  such  bodies  persons ;  but 
that  their  personality  was  purely  fictitious, 
nomen  juris,  and  therefore  entirely  within 

tion  theoretische  Erwagaingen  angestellt.  Allein  der 
gesammte  Aufbau  ihres  Korporationsrechts  gipfelte 
in  dem  Satz,  dass  hier  von  positiven  Recht  eine 
Nichtperson  personificirt  sei.  (Gierke,  op.  cit.,  iii. 
103.) 

Cf.  also  the  following  : — 

Als  publicistisches  Wesen  war  die  Universitas — 
eine  reale  Einheit  aber  keine  Person.  Als  Privat- 
rechtssubject  wai'  sie  eine  Person,  aber  keine  reale 
Einheit.  Eine  wirkliche  Person  war  nur  der  Mensch, 
weil  nur  er  ein  Individuum  und  nur  das  Individuum 
Person  war.  Wenn  eine  Universitas  obwohl  sie  ihren 
realen  Substrat  nach  kein  Individuum  war,  als  Person 
und  somit  als  Individuum  gesetzt  wurde,  so  lag 
darin  die  vom  Recht  vollzogene  Behandlung  einer  in 
Wirklichkeit  nicht  existenten  Thatsache,  als  sei  sie 
existent.     (Gierke,  iii.  103.) 

Der  Verbandsbegriflf  der  romischen  Jurisprudenz. 


62      CHURCHES  IN  THE  MODERN  STATE 

the  power  of  the  prince.^  Under  the  in- 
fluences which  led  to  the  reception  of  the 
Roman  Civil  Law  in  Germany  and  its 
dominance  throughout  Western  Europe, 
this  view  developed  into  the  full  doctrine 
of  the  concession  theory  of  corporate  life. 
Although  Roman  Law,  as  such,  was  never 
accepted  in  England,  yet  through  the  in- 
fluence of  chancellors  trained  partly  as 
canonists,  and  through  the  general  develop- 

1  Derselbe  Papst  (Innocent  III)  verbot  zugleich 
wegen  der  gesteigerten  Mannichfaltigkeit  der  Kongre- 
gationen  die  Begriindung  neuer  Orden,  ein  Verbot, 
von  dem  freilich  bald  darauf  zu  Gunsten  der  Bettel- 
nionche  wieder  abgegangen  wurden  musste,  das  aber 
doch  deutlich  zeigt  ?vie  aiich  dem  govaltigen  Aufsschwung 
der  religiosen  Association  gegeniiber  die  Kirche  an  dem 
Standpunkt  festhielt,  dass  die  Existenz  einer  geist- 
lichen  Genossenschaft  von  der  papstlichen  Sanktion 
abhangig  sei.  In  der  That  setzte  jetzt  wie  spater  die 
Kirche  es  durch,  das  alle  neu  entstehenden  geisthchen 
Gesellschaften  von  einiger  Bedeutung  ihrer  Kegel  und 
Verfassiuig  sich — formell  wenigstens — vom  papstlichen 
Stuhle  ertheilen  liessen  und  von  ihm  die  Gesammtheit 
ihrer  Reehte  herleiteten,  so  dass  auch  die  spons- 
tansten  Ordensvereinigungen  ebenso  wie  die  einzelnen 
Ordensgemeinden  nie  unter  den  BegriiF  vollig  freier 
Gesellschaften  fielen,  sondern  als  kirchliche  Anstalten 
xnit  gesellschaftlicher  Verfassung  betrachtet  wurden. 
(Gierke,  i.  293.) 


THE  GREAT  LEVIATHAN  63 

ment  of  absolutism  in  the  sixteenth  century, 
a  view  substantially  the  same  became  pre- 
valent in  this  country,  and  is  still  the  official 
doctrine,  although  more  and  more  influences 
are  tending  in  the  opposite  direction.  The 
present  state  of  affairs  can  be  seen  from  the 
perusal  of  the  inaugural  lecture  at  Oxford 
of  Dr.  Geldart  on  Legal  Personality.  An 
instance  of  the  way  in  which  facts  are  prov- 
ing too  strong  for  it,  was  the  judgment  in 
the  Tajf  Vale  Case  confirmed  by  the  House 
of  Lords.  In  order  to  save  their  funds  from 
certain  dangers,  the  Acts  which  enfranchised 
the  Trades  Unions  in  1875,  and  relieved  them 
from  the  law  of  conspiracy,  had  expressly 
denied  to  them  the  character  of  corpora- 
tions. Thus  the  common  chest  of  the 
union  could  not  be  raided  for  any  illegal 
acts  of  its  agents.  In  the  Taff  Vale  Case, 
however,  it  was  decided,  that  though  they 
were  not  corporate  bodies  legally,  yet  since 
their  acts  were  of  a  nature  so  closely  akin 
to  those  of  persons,  so  far  as  the  question 
of  damages  was  concerned  they  were  to  be 
treated  as  such,  and  made  responsible  for 
the  acts  of  agents.  Outcries  were  raised 
against  this  judgment,  which  was  certainly 


64     CHURCHES  IN  THE  MODERN  STATE 

contrary  to  what  had  for  nearly  a  generation 
been  supposed  to  be  the  law  ;  and  eventually 
the  Trades  Disputes  Act  was  passed  to  re- 
lieve the  unions  in  regard  to  picketing. 
This,  however,  is  irrelevant.  Whatever  other 
influences  may  have  assisted  in  forming  the 
minds  of  the  judges,  the  truth  is  that  the 
judgment  bears  witness  to  the  fact  that 
corporate  personality,  this  unity  of  life  and 
action,  is  a  thing  which  grows  up  naturally 
and  inevitably  in  bodies  of  men  united  for 
a  permanent  end,  and  that  it  cannot  in  the 
long  run  be  denied  merely  by  the  process 
of  saying  that  it  is  not  there.  In  other 
words,  this  personality  is  inherent  in  the 
nature  of  the  society  as  such,  and  is  not 
a  mere  name  to  be  granted  or  denied  at  the 
pleasure  of  the  sovereign  authority.  That 
so  much  was  actually  declared  by  the  House 
of  Lords,  I  do  not  say  ;  but  that  this  was  the 
inner  meaning  of  their  decision  seems  un- 
doubted. On  the  other  hand,  in  the  Osborne 
judgment  the  old  prejudice  must  have  been 
largely  at  the  bottom  of  the  decision,  which 
forbad  to  the  unions  the  power  to  use 
their  funds  as  a  whole  to  pay  Members 
of  Parliament.     In  other  words,  the  mem- 


THE  GREAT  LEVIATHAN  65 

bers  of  the  union  are  a  mere  collection  of 
individuals,  who  are  unchanged  by  their 
membership  of  the  society,  and  cannot 
therefore  have  the  funds  subscribed  turned 
to  a  purpose  to  which,  though  even  in  a 
minority,  they  object.  A  similar  view  is 
at  the  bottom  of  a  recent  decision  about 
the  power  of  a  club  to  raise  its  subscrip- 
tion. A  well-known  London  club  attempted 
to  do  this ;  one  of  the  members  refused  to 
pay  the  additional  amount,  and  was  expelled 
in  consequence.  He  brought  an  action,  and 
the  courts  decided  in  his  favour,  i.e.  that 
it  was  all  a  matter  of  contract,  and  that  the 
club  had  no  authority,  no  real  inherent  life, 
which  could  enable  it  to  pass  beyond  the 
arrangements  made  with  the  individual 
member  at  his  election,  who  might  thus 
enjoy  every  kind  of  new  improvement 
or  addition  to  the  club  without  paying  his 
share  in  the  extra  cost. 

So  long  as  this  doctrine  or  anything  like 
it  be  dominant,  it  would  probably  be  an 
evil  rather  than  a  benefit  if  the  Church  of 
England  were  to  become,  what  it  now  is 
not,  a  corporation  recognised  as  such  by  the 
law.     For  that  would  under  existing  condi- 

E 


66      CHURCHES  IxN  THE  MODERN  STATE 

tions  mean  that  it  was  subject  to  all  sorts 
of  restrictions,  while  at  the  same  time  it 
would   still   be   denied   inherent    rights   of 
self-development.     True,  facts   are   always 
stronger  than  abstract  theories,  and  the  fact 
of  corporate  life  might  not  improbably  be 
too   strong    for    any   legal   theories   which 
denied  it.     This  was  the  case  in  the  Scotch 
instance.     But  at  present  this  could  hardly 
be  guaranteed.     On  the  other  hand,  it  was 
shown  in  a  very  interesting  essay  of  Mait- 
land,^  that  part  of  the  practical  difficulty 
has  been  solved  in  this  country  by  the  insti- 
tution of  trusts.     Under  cover  of  trustee- 
ship, a  great  deal  of  action  has  taken  place 
which  is  really  that  of  corporate  personality, 
without  the  society  being  subject   to   the 
disabilities    incident    to     the    "concession 
theory."     He  points  out  in  regard  to  the 
Inns    of    Court,    which,   being    bodies    of 
lawyers,  may  be  supposed  to  know  what  is 
their  interest,  that  they  have  always  refused 
incorporation,  finding  that  they  can  under 
the  doctrine    of  trusteeship  do  what  they 
want    and    have   most    of    the    safeguards 
without  the   disabilities   of  corporate   life. 

1  Collected  Papers,  vol.  iii.  pp.  321-404.. 


THE  GREAT  LEVIATHAN  67 

At  the  same  time,  it  was  probably  through 
the  lack  of  a  proper  corporate  recognition 
that  a  scandal  was  possible,  like  that  by 
which  the  property  of  Serjeant's  Inn  could 
be  treated  as  the  individual  possession  of  its 
existing  members  and  divided  up  between 
them.  The  essay  is  very  interesting  and 
valuable,  for  it  shows  how  the  practical 
good  sense  of  Englishmen  has  enabled  them 
to  accept  an  abstract  doctrine  of  the  nature 
of  the  corporation,  not  germane  to  the 
realities  of  life,  while  denuding  it  of  many 
of  its  most  grievous  consequences. 

It  may  seem  that  these  considerations  are 
matters  merely  of  legal  theory,  and  that 
they  do  not  concern  us  in  the  practical 
problem  of  securing  reasonable  liberty  for 
the  Church  as  a  self-developing  body,  I 
think  that  this  is  not  the  case.  For  let  us 
consider  what  is  at  the  back  of  it  all.  Since 
the  corporate  society  is  only  a  persona  ficta, 
with  the  name  given  it  by  the  law,  but  no 
real  inward  life,  we  have  on  this  view  but 
two  social  entities,  the  State  on  the  one 
hand  and  the  individual  on  the  other.  The 
rights  or  actions  of  the  one  are  private, 
those  of  the  other  are  public.     The  State 


68      CHURCHES  IN  THE  MODERN  STATE 

may  be  of  any  kind  of  structure,  monarchic, 
aristocratic,  or  purely  coUectivist ;  but  in  all 
cases  there  are  recognised  by  the  law,  no 
real  social  entities,  no  true  powers,  except 
the  sovereign  on  the  one  hand  with  irresis- 
tible authority,  and  the  mass  of  individuals 
on  the  other.  Societies,  so  far  as  they 
exist,  are  mere  collections  of  individuals 
who  remain  unchanged  by  their  member- 
ship, and  whose  unity  of  action  is  narrowly 
circumscribed  by  the  State,  and  where  al- 
lowed is  allowed  on  grounds  quite  arbitrary. 
Under  such  a  view  there  can  be  no  possible 
place  for  the  religious  body,  in  the  sense  of 
a  Church  living  a  supernatural  life,  and  the 
claim  is  quite  just  that  no  Church  should 
have  any  standard  of  morals  different  from 
those  of  the  State. 

But  is  not  this  woefully  to  misconceive 
the  actual  facts  of  social  life,  as  they  present 
themselves  to  our  eyes,  and  to  get  a  wrong 
notion  of  the  State  ?  Let  me  give  an  in- 
stance. Throughout  the  education  contro- 
versy much  has  been  heard  against  the 
iniquity  of  privately  managed  schools  receiv- 
ing public  money,  at  least  in  the  form  of 
rates  (for  the  income-tax  is  not  concerned 


THE  GREAT  LEVIATHAN  69 

with  conscience).  Now  surely  (except  in 
the  case  of  the  one-man  manager)  this  is  a 
total  misconception.  As  opposed  to  State 
management,  perhaps  the  word  private  may- 
be admitted,  but  when  it  implies,  as  it  ought, 
purely  individual  management,  a  false  view 
is  suggested.  These  social  bodies  other  than 
the  State  are  not  only  not  private,  but  in 
their  working  they  are  more  akin  to  the 
State  than  they  are  to  the  individual.  I 
mean  that  both  of  them  are  cases  of  a 
society  acting  as  one,  to  which  tlie  indi- 
vidual members  are  subject.  The  relations 
between  the  member  and  his  society  are 
more  akin  to  those  of  a  citizen  to  a  State 
than  to  anything  in  the  individual.  It  is 
very  easy  to  say  that  universities,  colleges, 
trade  unions,  inns  of  court,  &c.  &c.,  are 
purely  private,  and  in  one  sense  it  is  true ; 
they  are  not  delegates  of  the  State  or  parts 
of  its  machinery ;  but  they  are  in  a  very 
real  sense  public,  i.e.  they  are  collective, 
not  individual,  in  their  constitution.  The 
popular  use  of  the  word  "  Public  School " 
to  denote  a  school  under  collective  manage- 
ment is  a  far  more  reasonable  and  realistic 
habit,  though  I  suppose  that  it  is  not  tech- 


70      CHURCHES  IN  THE  MODERN  STATE 

nically  justified.  The  point  is  that  it  is  the 
public  communal  character  of  all  such  in- 
stitutions that  is  the  salient  fact ;  and  that 
we  do  wrong  to  adopt  a  rigid  division  into 
public  and  private,  if  we  mean  by  the  latter 
any  and  every  institution  that  is  not  a  dele- 
gation from  the  State.  What  we  actually 
see  in  the  world  is  not  on  the  one  hand  the 
State,  and  on  the  other  a  mass  of  unrelated 
individuals  ;  but  a  vast  complex  of  gathered 
unions,  in  which  alone  we  find  individuals, 
families,  clubs,  trades  unions,  colleges,  pro- 
fessions, and  so  forth ;  and  further,  that 
there  are  exercised  functions  within  these 
groups  which  are  of  the  nature  of  govern- 
ment, including  its  three  aspects,  legislative, 
executive,  and  judicial;  though,  of  course, 
only  with  reference  to  their  own  members. 
So  far  as  the  people  who  actually  belong  to 
it  are  concerned,  such  a  body  is  every  whit 
as  communal  in  its  character  as  a  municipal 
corporation  or  a  provincial  parliament. 

Not  only,  however,  is  this  view  false  to 
the  true  character  of  the  State ;  it  is  entirely 
wroner  in  its  view  of  the  individual  citizen. 
As  a  matter  of  fact,  personality  is  a  social 
fact ;  no  individual  could  ever  come  to  him- 


THE  GREAT  LEVIATHAN  71 

self  except  as  a  member  of  a  society,  and 
the  membership  of  any  society  does  not 
leave  even  the  adult  individual  where  he 
was.  There  is  an  interpenetration  of  his 
life  with  that  of  the  society,  and  his  per- 
sonality is  constantly  being  changed  by  this 
fellowship.  Too  often  on  the  part  of  those 
who  strongly  believe  in  human  personality, 
the  necessities  of  controversy  against  doc- 
trines which  virtually  deny  it  has  led  to  an 
insistence  on  the  individual  to  the  neglect  of 
the  social  side.  Correction  of  this  error  will 
be  found  in  a  very  valuable  book  by  Mr. 
Wilfrid  Richmond,  Personality  as  a  Philoso- 
phical Principle.  We  cannot,  however,  too 
often  emphasize  in  regard  to  politics,  that 
not  the  individual  but  the  family  is  the 
real  social  unit,  and  that  personality  as  a 
fact  never  grows  up  except  within  one  or 
more  social  unions.  That,  however,  will 
be  met  by  the  claim  that  this  is  just  what 
citizenship  means  ;  that  "  the  State  is  prior  " 
to  the  individual,  and  that  true  personality 
is  to  grow  up  in  the  great  collective  union 
of  national  life.  This  seems  to  me  to  lie  at 
the  root  of  the  difficulty. 
When  Aristotle  uttered  his  famous  dictum. 


72      CHURCHES  IN  THE  MODERN  STATE 

the  State  meant,  as  all  know,  a  small  body 
of  persons,  not  more  than  could  be  gathered 
in  one  place ;  and  although  we  may  hold 
that  the  antique  State  was  too  all-embrac- 
ing, at  least  it  was  not  unreasonable  to 
maintain  that  the  compact  City- State  of 
ancient  Greece  was  the  social  home  of  all 
the  individuals  comprising  it,  and  no  more 
w^as  needed.  In  the  modern  world,  how- 
ever, no  such  assertion  is  possible.  What- 
ever the  State  may  attempt,  she  cannot  be 
the  mother  of  all  her  citizens  in  the  same 
sense  as  the  City-State  of  old  ;  and,  as  a  fact, 
men  will  grow  to  maturity  and  be  moulded 
in  their  prejudices,  their  tastes,  their  capaci- 
ties, and  their  moral  ideals  not  merely  by  the 
great  main  stream  of  national  life,  but  also, 
and  perhaps  more  deeply,  by  their  own  family 
connections,  their  local  communal  life  in 
village  or  town,  their  educational  society 
(for  it  is  of  the  essence  of  education  to  be 
in  a  society),  and  countless  other  collective 
organisms.  It  is  these  that  make  up  the 
life  of  the  modern  world,  and  to  deny  them 
all  real  existence  or  power,  whether  it  be  in 
the  interests  of  legal  theory  or  of  an  abstract 
economic  collectivism,  seems  to  me  to  be 


THE  GREAT  LEVIATHAN  73 

in  principle  false  to  the  facts,  and  in  practice 
to  be  steering  straight  for  the  rocks.  It 
must  not  be  forgotten  that  on  the  ideal 
system  which  arose  out  of  the  Greek  City- 
State  the  fact  of  the  family  as  a  real  entity 
disappears ;  and  Plato  would  allow  a  com- 
munity in  wives. 

What  has  really  happened  is  that  a  con- 
ception of  sovereignty  which  more  or  less 
expressed  the  facts  in  the  ancient  City- 
State  was  extended  to  the  vast  world- 
empire  of  the  Romans,  developed  and 
concentrated  in  the  autocrat  at  its  head. 
The  doctrine  of  the  unity  of  the  sovereign 
power  and  the  complete  non-existence  of  all 
other  real  authorities  became  the  settled  pre- 
supposition of  the  lawyers,  and  crystallised 
into  maxims  which  are  familiar  to  all,  such 
as  qicod  principi  placuit  legis  habet  vig07xm, 
that  the  Emperor  was  legibus  solutus,  and 
so  forth.  ^Moreover,  the  fact  that  there 
remained  in  the  account  of  the  lea.'  7Tgia  a 
tradition  of  the  popular  origin  of  the  Im- 
perial authority  has  rendered  it  more  easy 
to  apply  the  same  doctrine  to  a  modern 
State.  Whether  or  no,  as  the  lea.'  regia 
implies,   all    power   was   originally   in    the 


74      CHURCHES  IN  THE  MODERN  STATE 

people,  who'  transferred  it  by  irrevocable 
act  to  the  prince,  it  is  equally  clear  that 
the  essential  doctrine  of  a  single  irresistible 
authority  "inalienable,  indivisible,  and  incap- 
able of  legal  limitation  "  is  ready  to  hand 
in  the  Roman  system,  and  may  be  applied 
with  equal  facility  to  a  modern  democracy 
like  France  or  an  ancient  empire  like  Rome. 
In  either  case  it  is  equally  destructive  of 
any  real  recognition  of  the  rights  of  social 
unions  other  than  the  State.  Except  as  its 
own  delegations,  the  Imperial  Government 
was  extremely  suspicious  of  all  such  societies; 
and,  as  I  have  said,  it  treated  corporations 
in  a  way  which  differed  from  the  more  de- 
veloped "  concession  theory  "  only  in  that  it 
had  not  reached  so  far  even  as  the  notion 
that  they  were  fictitious  persons.  But  the 
point  is  that  of  all  real  life  in  such  bodies 
the  Government  was  most  suspicious,  and 
Sir  William  Ramsay  in  his  Church  and  the 
Roman  Evipire  has  shown  that  it  was  just 
in  this  fact,  that  the  Church  claimed  a  dif- 
ferent sanction,  a  separate  life,  and  a  new 
non-Roman  unity,  that  lay  the  whole  ground 
of  the  long  persecution.  Unfortunately, 
when  the  Church  triumphed,  she  for  the 


THE  GREAT  LEVIATHAN  75 

time  virtually  abandoned  the  claim  to  free- 
dom within  the  State  which  had  deluged 
the  Coliseum  with  blood.  There  was  no 
change  in  the  antique  Graeco- Roman 
conception  of  a  single  all-absorbing  omni- 
competent power,  the  source  of  every  right, 
and  facing  with  no  intermediates  the  vast 
masses  of  individual  citizens.  The  only 
difference  made  was  that  this  State  from 
being  Pagan  became  Christian,  and  after 
the  proscription  of  Paganism  by  Theo- 
dosius  the  Great  there  was  no  need  for 
men  to  worry  themselves  with  forming  a 
totally  new  doctrine  of  the  structure  of 
civil  society.  The  De  Civitate  Dei  of  St. 
Augustine  provided  the  framework  in  which 
all  the  political  thinking  of  men  was  done 
for  more  than  a  thousand  years,  nor  is  its 
influence  even  yet  extinct.  The  mediaeval 
doctrine  of  the  Holy  Roman  Empire  crys- 
tallised this  ideal  in  a  form  which,  if  not 
very  practicable,  was  at  least  an  object  to 
work  for,  and  did  as  a  fact  direct  the  life 
and  work  of  many  of  its  greatest  leaders. 
An  ideal  which  Charles  the  Great,  Otho  the 
Great,  Pope  Sylvester  II,  Henry  of  Luxem- 
burg were  content  even  to   try  to   realise 


76      CHURCHES  IN  THE  MODERN  STATE 

cannot  be  dismissed  as  of  no  influence  on 
the  lives  of  men.  If  it  was  not  realised,  it 
at  least  caused  people  to  do  what  they 
would  otherwise  have  left  undone  and  ruled 
their  imaginations,  a  fact  which  is  plain 
from  Dante's  De  Monarchia  and  from 
many  of  the  most  striking  passages  in  the 
Divina  Commedia. 

On  the  other  hand,  the  Teutonic  polity 
and  habit  of  mind,  if  it  did  not  quite  pro- 
duce, approached  a  view  of  the  relation  of 
the  individual  to  the  society  and  of  the 
smaller  societies  to  the  whole,  which  is  that 
to  which  we  are  being  driven.  The  enor- 
mous development  of  corporate  life  in  the 
Middle  Ages,  guilds  of  every  kind,  and  the 
whole  notion  of  the  system  of  estates  in  the 
body  politic  all  testified  to  the  same  fact. 
There  was  a  very  definite  sense  of  the  in- 
dividual, not  as  something  separate,  but  as 
moulded  and  interpenetrated  by  the  life  of 
the  society.  There  was,  further,  the  very 
definite  sense  that  the  societies  all  were 
organic,  that  they  lived  by  an  inherent 
spontaneity  of  life,  and  that  as  communal 
societies  they  had  their  own  rights  and 
liberty,   which    did   not    originate   in    the 


THE  GREAT  LEVIATHAN  77 

grant  of  the  sovereign.  As  Gierke,  how- 
ever, points  out,  this  was  instinctive  rather 
than  theoretical ;  they  had  not  reached  the 
difficult  and  developed  conception  of  cor- 
porate personality.  And  this,  among  many 
other  causes,  is  the  explanation  of  the  ease 
with  which  the  ancient  ideas  of  corporate 
liberty  and  real  social  life  went  down  before 
the  logically  developed  and  erudite  system 
which  ruled  the  minds  of  the  lawyers  from 
the  Renaissance  onwards.  ^ 

Nor  must  it  be  supposed  that  the  Church 
was  an  exception.  The  theory  of  the 
Church  came  from  the  Roman  Empire. 
Neither  Churchmen  nor  statesmen  believed 
in  two  separate  social  entities,  the  Church 
and  the  State,  each  composed  of  the  same 
persons.  Nor  indeed  was  that  necessary 
in  the  mediaeval  idea  of  a  Christian  State. 
Rather,  when  conflict  is  spoken  of  between 
Church  and  State,  it  is  conflict  between 
two   bodies   of  officials,  the   civil  and  the 

^  An  interesting  account  of  the  contrast  between  the 
learned,  gentlemanly  Roman  system  and  the  ancient 
Teutonic  communal  law  will  be  found  in  the  essay  of 
the  Germanist,  Georg  Beseler,  Volksrecht  und  Juristen- 
recht. 


78      CHURCHES  IN  THE  MODERN  STATE 

ecclesiastical.  When  Henry  IV  resisted 
Hildebrand,  he  admitted  that  for  the  case 
of  heresy  he  might  be  deposed ;  and  the 
whole  atmosphere  of  the  mediseval  mind 
was  such  that  we  cannot  picture  them  as 
treating  the  two  as  really  separate  societies. 
When  the  liberty  of  the  Church  is  claimed, 
it  almost  always  denotes  the  liberty  of 
the  hierarchy,  not  that  of  the  whole  body. 
Alike  on  the  Imperial  and  the  Papal  side, 
the  claims  raised  would  have  been  incon- 
ceivable, had  it  not  been  admitted  that 
both  Popes  and  Emperors  were  rulers  in 
one  society.  I  do  not  say  that  there  was 
no  approximation  to  the  idea  of  a  "free 
Church  in  a  free  State";  but  so  long  as 
persecution  was  taken  for  granted,  and  a 
coercive  Church-State  was  the  ideal,  the 
claims  which  we  put  forward  were  not 
seriously  entertained.  That  was  the  root 
of  the  difficulty. 

With  the  then  existing  presuppositions 
and  the  argument  from  abstract  unity  so 
strong — strong  partly  because  of  the  uni- 
versal lawlessness — the  claim  to  freedom, 
whether  put  forward  by  the  civil  or  the 
ecclesiastical    power,    became    inevitably   a 


THE  GREAT  LEVIATHAN  79 

claim  to  supremacy,  and  was  therefore 
never  really  admitted  by  the  others.  The 
Popes  could  never  allow  that  matters  of 
religion  and  conscience  were  to  be  at  the 
mercy  of  poUticians ;  the  Emperors  could 
never  allow  that  the  State  merely  existed 
on  sufferance  of  the  spiritual  power.  This 
conflict  could  never  be  solved  so  long  as 
both  parties  maintained  the  right  and  duty 
of  persecution,  i.e.  the  necessary  connection 
of  membership  of  the  Church  with  citizen- 
ship in  the  State.  Furthermore,  inside  the 
polity  of  the  Church,  the  other  system  had 
triumphed  and  the  development  of  the 
Papal  system  meant  the  transference  to 
the  Pope  of  all  the  notions  of  illimitable 
authority  claimed  by  the  Emperor  in  truth. 
The  great  Leviathan  of  Hobbes,  the  pleiii- 
tudo  potestatis  of  the  canonists,  the  aixana 
imperii,  the  sovereignty  of  Austin,  are  all 
names  of  the  same  thing — the  unlimited 
and  illimitable  power  of  the  law-giver  in 
the  State,  deduced  from  the  notion  of  its 
unity.  It  makes  no  difference  whether  it 
is  the  State  or  the  Church  that  is  being 
considered. 

Towards  the  close  of  the  Middle  Ages  it 


80      CHURCHES  IN  THE  MODERN  STATE 

might  seem  as  though  the  way  was  being 
paved  for  a  more  natural  system.  So  far  as 
the  European  monarchs  were  concerned, 
the  Imperial  claim  remained  no  more  than 
honorific,  and  after  the  conflict  between 
Philippe  le  Bel  and  Boniface  VIII  there 
seemed  no  possibility  of  asserting  claims  of 
the  Papacy  against  the  rising  national 
powers.  Within  those  national  powers, 
institutions  had  arisen  all  over  Europe, 
which  expressed  the  fact  that  the  State  was 
a  communitas  communitatum.  This  is  the 
true  meaning  of  our  word  Commons ;  not 
the  mass  of  the  common  people,  but  the 
community  of  the  communities.  However 
imperfect  in  theory,  there  was  a  practical 
recognition  of  merchant  and  craft  guilds, 
with  borough  charters,  guild  liberties,  the 
baronial  honours,  with  courts  Christian, 
courts  royal,  and  courts  manor,  all  function- 
ing, with  special  laws  and  customs  recognised 
even  for  fairs  and  markets  and  universities. 
These  facts,  together  with  the  traditions  of 
fellowship  life  coming  down  from  a  long 
past,  might  well  make  it  seem  that  a 
system  of  universal  liberties  and  balanced 
powers  would  result,  that  at  last  the  lion 


THE  GREAT  LEVIATHAN  81 

of  the  throne  would  lie  down  with  the  lamb 
of  spiritual  freedom  in  a  semi-federalist 
polity. 

But  it  was  not  to  be.  The  lion  got  out- 
side of  the  lamb.  Roman  Law  became 
more  and  more  the  norm ;  1495  is  the  date 
of  its  reception  in  Germany;  national  and 
local  customs  were  decried  by  the  civilians, 
learned,  classical,  Romanist  to  the  core. 
The  dangers  of  anarchy  under  feudahsm 
made  the  mass  of  men  blind  to  the  dangers 
of  autocracy.  All  the  learning  of  the  Re- 
naissance was  in  favour  of  the  power  of 
the  prince,  save  for  a  few  dreamers  who 
looked  to  a  republic.  Clerical  immunities 
had  been  abused ;  the  religious  orders  were 
too  much  of  an  imperium  in  imperio.  With 
the  Lutheran  movement,  there  went  on  the 
one  hand  the  destruction  of  the  ancient 
conception  of  Christendom  as  a  single  polity, 
under  the  leadership  of  Pope  and  Emperor 
and  the  Lordship  of  Christ;  and  on  the 
other,  the  transference  to  the  prince  as 
head  of  a  compact  territorial  unity  of  the 
bulk  of  the  prerogatives  of  both  spiritual 
and  secular  power.  The  doctrine  of  cujus 
regio  ejus  religio  of  the  rehgious  peace  of 

F 


82    CHURCHES  IN  THE  MODERN  STATE 

Augsburg  was  the  natural  expression  of 
this  fact ;  so  that  one  elector  could  say 
quite  readily  that  his  people's  conscience 
belonged  to  him.  That  was,  of  course, 
the  notion  of  Henry  VIII.  It  was  for- 
mulated into  a  complete  theory  of  the 
State  by  Jean  Bodin  in  France,  and  after- 
wards by  Thomas  Hobbes  in  England. 
Hobbes  denied  every  kind  of  right  not 
derived  from  the  sovereign ;  and  devotes 
one  book  of  his  Leviathan  to  "the  kingdom 
of  darkness,"  in  other  words  the  Roman 
Church,  which  he  thus  denominates  because 
its  claims  would  break  up  the  unity  of  the 
sovereign  power.  In  the  seventeenth  century, 
both  in  England  and  on  the  Continent, 
this  notion  of  a  compact  omnicompetent 
sovereign,  by  whose  permission  alone  ex- 
isted the  right  to  breathe,  was  mixed  up 
with  the  theory  of  the  divine  right  of 
kings.  But  it  is  not  really  tied  thereto. 
The  eighteenth  century  saw  it  asserted  of 
Parliament ;  and  the  claim  to  parliamentary 
omnipotence  was  the  real  cause  of  the 
American  Revolution.  In  the  other  hemi- 
sphere was  set  up  a  State  which,  as  being 
federal,  was  largely  a  denial  of  this  claim ; 


THE  GREAT  LEVIATHAN  83 

but  the  civil  war  seems  to  have  proved  the 
contrary.  Even  now,  however,  the  doctrine 
of  State  rights  is  still  strong,  is  said  to  be 
gaining  rather  than  losing  adherents,  and 
we  may  learn  much  from  the  attitude  of 
the  American  courts  to  such  problems  as 
those  of  the  free  development  of  religious 
bodies. 

In  France,  unlike  England,  the  theory  of 
sovereignty  had  been  crystallised  in  the 
person  of  the  monarch ;  but  it  was  not 
overthrown  by  the  Revolution.  What  was 
overthrown  was  the  surviving  remnant  of 
feudalism  and  the  last  relics  of  local  and 
partial  liberty.  The  doctrine  of  a  single 
uniform  all-absorbing  power  has  been 
carried  to  a  height  further  than  even 
Louis  XIV  could  have  dreamed ;  and, 
as  we  have  seen,  even  religious  toleration 
exists  only  in  name.  This  doctrine  has 
found  in  England  classical  expression  in 
the  writings  of  John  Austin,  which  do  little 
more  than  formulate  the  Roman  theory  of 
sovereignty,  and  is  imbued  with  the  same 
notion  of  the  entire  distinction  between 
public  and  private,  which  forbids  any  right 
classification  of  social  institutions.     Austin 


84      CHURCHES  IN  THE  MODERN  STATE 

has  been  subjected  to  much  criticism,  but 
with  certain  slight  qualifications  his  notions 
still  rule  the  legal  mind — except,  of  course, 
those  who  are  definitely  working  towards 
a  new  doctrine  of  corporate  life.  And  in 
regard  to  the  Church,  to  morals  alike, 
it  is  taken  as  an  axiom  that  the  law  is 
morally  binding,  and  by  many  that  what  is 
legally  right  cannot  be  morally  wrong. 

This  doctrine  is,  however,  becoming  more 
and  more  difficult  to  reconcile  with  the 
facts.  As  a  mere  verbal  theory  I  do  not 
know  that  this  view  of  sovereign  power  is 
assailable  ;  and  by  means  of  the  proviso  that 
whatever  the  sovereign  permits  he  com- 
mands, we  cannot  positively  say  that  any 
measure  of  freedom  is  inconsistent  with  it. 
Practically,  however,  it  is  clear  that  we 
need  something  different  and  more  pro 
found.  We  have  seen  one  salient  instance 
of  the  pitfalls  it  is  apt  to  lead  to.  We 
must  bear  in  mind  that  Parhament  is 
nominally  sovereign,  not  only  in  England 
but  in  every  portion  of  the  Empire,  and 
that  no  local  Hberty  exists  in  theory  but 
as  a  delegated  authority  for  the  will  of  the 
Imperial  Parliament.     Yet  in  regard  to  the 


THE  GREAT  LEVIATHAN  85 

immigration  law  in  South  Africa,  it  was 
admitted  that  the  Imperial  Parliament  dare 
not  override  the  will  of  the  local  bodies  even 
though  they  were  doing  a  manifest  injustice 
to  their  fellow-subjects.  In  other  words,  the 
local  body  had  a  real  independent  life,  and 
could  not  be  touched. 

The  theory  of  government  which  is  at 
the  root  of  all  the  trouble  is  briefly  this. 
All  and  every  right  is  the  creation  of  the 
one  and  indivisible  sovereign ;  whether  the 
sovereign  be  a  monarch  or  an  assembly  is 
not    material.      No    prescription,   no    con- 
science, no  corporate  life  can   be   pleaded 
against  its  authority,  which  is  without  legal 
limitation.     In  every  State  there  must  be 
some  power  entirely  above  the  law,  because 
it  can  alter  the  law.     To  talk  of  rights  as 
against  it  is  to  talk  nonsense.     In  so  far  as 
every  State  is  a  State,  this  view  is  held  to 
be  not  only  true  but  self-evident.     In  so 
far  as  it  is  not  true,  it  is  because  the  State 
is  in  a  condition  of  incipient  dissolution  and 
anarchy  is  already  setting  in.     The  doctrine 
of  sovereignty  is,  in  fact,  a  deduction  partly 
from  the   universality  of  law  in    a   stable 
commonwealth,  and  partly  from  the  abstract 


86      CHURCHES  IN  THE  MODERN  STATE 

notion  of  unity.  That  this  latter  has  much 
to  do  with  it  will  be  evident  to  all  who  are 
acquainted  with  the  controversialist  litera- 
ture of  either  the  Middle  Ages  or  the 
seventeenth  century.  Filmer's  Anarchy  of 
a  Mixed  Monarchy  is  a  brief  statement  of 
this  standpoint. 

But  the  truth  is,  that  this  State  in  a 
sense  of  absolute  superhuman  unity  has 
never  really  existed,  and  that  it  cannot 
exist.  In  theory  it  represents  a  despot 
ruling  over  slaves  ;  in  practice  even  a  despot 
is  limited  by  the  fact  that  slaves  are,  after 
all,  human;  deny  their  personality  as  you 
like,  there  comes  a  point  at  which  it  asserts 
itself,  and  they  will  kill  either  the  despot 
or  themselves.  At  bottom  the  doctrine 
represents  a  State,  which  is  a  super-man 
ruling  individuals  who  are  below  men.  It 
is  like  the  absolute  of  the  Bradleyan  philo- 
sophy which  absorbs  and  ultimately  anni- 
hilates all  individual  distinction.  It  is 
partly  symbolised  by  the  title-page  of  the 
Leviatha?i  of  Hobbes.  Attempts  are  made 
to  get  out  of  the  difficulty  by  saying  that 
the  sovereign  power,  though  theoretically 
illimitable,  is  limited  in  practice  very  mate- 


THE  GREAT  LEVIATHAN  87 

rially ;  psychologically  by  its  own  nature,  and 
externally  by  the  fact  that  there  are  certain 
things  which  no  government  can  do  with- 
out provoking  resistance,  e.g.  Louis  XIV 
could  not  have  established  Mohammedanism, 
even  if  he  had  wished.  In  this  way  custom 
on  the  one  hand,  local  liberties  or  indi- 
vidual rights  on  the  other,  would  acquire 
a  place.  We  are,  I  admit,  brought  nearer 
to  the  facts. ^  But  it  seems  a  weakness  in 
a  doctrine  that  you  can  only  fit  the  facts 
into  its  framework  by  making  such  serious 
qualifications,  and  it  would  appear  a 
more  reasonable  maxim  to  get  a  theory  of 
law  and  government  not  by  laying  down 
an  abstract  doctrine  of  unity,  but  by 
observing  the  facts  of  life  as  it  is  lived, 
and  trying  to  set  down  the  actual  fea- 
tures of  civil  society.  What  do  we  find 
as  a  fact  ?  Not,  surely,  a  sand-heap  of 
individuals,  all  equal  and  undifferentiated, 
unrelated  except  to  the  State,  but  an  as- 
cending hierarchy  of  groups,  family,  school, 
town,  county,  union,  Church,  &c.  &c.  All 
these  groups  (or  many  of  them)  live  with 

^  This  view  is  most  lucidly  stated  by  Professor  Dicey 
in  The  Law  of  the  Constitution,  pp.  72-81. 


88      CHURCHES  IN  THE  MODERN  STATE 

a  real  life ;  they  act  towards  one  another 
with  a  unity  of  will  and  mind  as  though 
they  were  single  persons ;  they  all  need  to 
be  allowed  reasonable  freedom,  but  must 
be  restrained  from  acts  of  injustice  towards 
one  another  or  the  individual ;  they  are  all 
means  by  which  the  individual  comes  to 
himself.  For  in  truth  the  notion  of  isolated 
individuality  is  the  shadow  of  a  dream, 
and  would  never  have  come  into  being  but 
for  the  vast  social  structure  which  allows 
a  few  individuals  to  make  play,  as  though 
they  were  independent,  when  their  whole 
economic  position  of  freedom  is  symbolic  of 
a  long  history  and  complex  social  organisa- 
tion. In  the  real  world,  the  isolated  indivi- 
dual does  not  exist ;  he  begins  always  as  a 
member  of  something,  and,  as  I  said  earlier, 
his  personality  can  develop  only  in  society, 
and  in  some  way  or  other  he  always 
embodies  some  social  institution.  I  do  not 
mean  to  deny  the  distinctness  of  individual 
life,  but  this  distinction  can  function  only 
inside  a  society.  Membership  in  a  social 
union  means  a  direction  of  personality, 
which  interpenetrates  it,  and,  according  to 
your  predilection,  you  may  call  either  an 


THE  GREAT  LEVIATHAN  89 

extension  or  a  narrowing ;  it  is  in  truth 
both.  You  cannot  be  a  member  of  any 
society  and  be  the  same  as  though  you 
were  not  a  member;  it  affects  your  rights 
and  duties,  limits  at  once  and  increases 
your  opportunities,  and  makes  you  a  dif- 
ferent being,  although  in  many  different 
degrees,  according  to  the  nature  of  the 
society  and  the  individual  member.  You 
are  not  merely  John  Doe  or  Richard  Roe, 
but  as  John  may  probably  be  a  member  of 
the  Christian  Church  by  baptism,  a  Doe 
by  family,  an  Englishman  by  race  ;  all  three 
are  social  institutions,  which  have  grown 
into  you.  In  addition  to  this  you  are  a 
member  of  a  school,  an  alumnus  of  a 
college,  a  sharer  in  this  club,  a  president 
of  that,  and  so  forth.  All  these  groups 
and  unions  have  their  effect,  and  limit  and 
develop  your  life,  make  you  do,  or  refrain 
from  doing,  what  otherwise  you  would  not, 
and  in  so  far  prevent  you  being  a  free  and 
untramelled  citizen  of  the  State.  More  than 
that,  they  penetrate  your  imagination  and 
your  thought  and  alter  not  only  what  you 
do  but  what  you  want  to  do.  Between 
all  these  groups  there  will  be  relations,  and 


90      CHURCHES  IN  THE  MODERN  STATE 

not  merely  between  the  individuals  com- 
posing them.  To  prevent  injustice  between 
them  and  to  secure  their  rights,  a  strong 
power  above  them  is  needed.  It  is  largely 
to  regulate  such  groups  and  to  ensure 
that  they  do  not  outstep  the  bounds  of 
justice  that  the  coercive  force  of  the  State 
exists.  It  does  not  create  them;  nor  is  it 
in  many  matters  in  direct  and  immediate 
contact  with  the  individual.  The  claim  of 
the  Church  in  matters  of  education  is  the 
claim  that  she  shall  be  recognised  as  a 
group,  in  which  the  natural  authority  over 
its  members  extends  to  the  provision  of  a 
social  atmosphere;  and  this  ought  to  be 
admitted,  provided  the  requirements  of 
citizenship  in  secular  culture  be  provided 
and  controlled. 

All  this,  it  will  be  said,  lessens  the  hold 
of  the  State  over  the  individual.  But  this 
is  needful  the  moment  you  reach  any  large 
and  complex  society.  In  a  developed  state 
of  civilisation  many  interests  must  be 
allowed  social  expression,  which  in  one 
sense  are  a  separating  influence.  Even  a 
member  of  a  musical  club  is  so  far  separated 
from  those   who   are  excluded  ;  and  he  is 


THE  GREAT  LEVIATHAN  91 

changed  by  the  fact  of  this  club-life,  which 
enters  into  him.  In  the  JNIiddle  Ages  there 
was  an  appropriate  dress  for  every  caUing ; 
under  the  modern  notion  we  have  all  been 
trying  to  dress  alike,  and  most  of  us  doing 
it  very  badly.  Tlie  old  custom  survives  in 
clergy  and  in  butcher  boys,  and  we  are 
seeing  revivals  in  the  costumes  of  boy 
scouts.  Instead  of  an  iron  uniformity,  we 
need  more  and  more  a  reasonable  distinction 
of  groups,  all  of  which  should  be  honourable. 
There  is  a  whole  philosophy  in  school 
colours. 

Recent  discussions  are  making  men  ask 
once  more  in  matters  other  than  religion, 
what  are  the  limits  of  the  authority  of 
Parliament.  The  idolatry  of  the  State  is 
receiving  shrewd  blows.  It  is  said,  however, 
especially  in  regard  to  the  Church,  that  to 
recognise  its  rights  is  dangerous.  But  if  it 
is  a  fact,  it  must  be  more  dangerous  not  to 
recognise  its  real  life.  The  same  is  true  of 
individuals.  However  you  may  proclaim 
with  M.  Combes  that  "  there  are  no  rights 
but  the  rights  of  the  State,"  you  find  indi- 
viduals who  habitually  act  as  if  they  had 
them ;    and    even    when    you    go    on    to 


92     CHURCHES  IxN  THE  MODERN  STATE 

say  that  "there  is  no  authority  but  the 
authority  of  the  repubhc,"  you  do  not  in 
practice  prevent  all  kinds  of  societies  from 
behaving  in  a  way  that  implies  authority 
over  their  members.  Nor  can  you.  It  is 
impossible.  Society  is  inherent  in  human 
nature,  and  that  means  inevitably  the 
growth  of  a  communal  life  and  social  ties ; 
nor  is  it  possible  to  confine  this  to  the  single 
society  we  call  the  State,  unless  it  be  on  a 
very  small  scale,  and  even  then  there  is  the 
family  to  reckon  with.  Of  course  such 
societies  may  come  into  coUision  with  the 
State ;  so  may  individuals.  Always  there 
is  a  possibility  of  civil  war.  But  you  will 
not  escape  the  possibility  by  ignoring  the 
facts.  The  only  way  to  be  sure  an  indi- 
vidual will  never  become  a  criminal  is  to 
execute  him ;  the  only  way  to  secure  a 
State  from  all  danger  on  the  part  of  its 
members  is  to  have  none.  Every  State  is  a 
synthesis  of  living  wills.  Harmony  must 
ever  be  a  matter  of  balance  and  adjustment, 
and  this  at  any  moment  might  be  upset, 
owing  to  the  fact  that  man  is  a  spiritual 
being  and  not  a  mere  automaton.  It  would 
seem  to  be  wiser  to  treat  all  these  great 


THE  GREAT  LEVIATHAN  93 

and  small  corporate  entities  which  make  up 
our  national  life  as  real,  as  living  beings, 
i.e.  practically  as  persons,  and  then  when 
this  is  once  realised,  limit  them  in  their 
action,  than  it  is  to  try  and  treat  them  as 
what  they  are  not,  i.e.  as  dead  bodies,  dry 
bones,  into  which  nothing  but  an  arbitrary 
fiat  gives  a  simulacrum  of  life,  which  may 
at  any  moment  be  withdrawn.  After  all, 
the  Roman  Government  did  not  destroy 
the  living  unity  of  the  Church  by  denying 
its  claim  to  exist ;  but  it  nearly  destroyed 
itself  in  the  attempt. 

Note 

The  following  excerpts  from  Gierke  are 
valuable  in  this  connection.  The  first  shows 
how,  in  Gierke's  view,  the  great  difference 
between  the  Teutonic  and  the  Latin  mind 
lay  in  the  fact  that  the  one  starts  from  the 
idea  of  Law,  the  other  from  that  of  Force. 
The  second  shows  how  the  ancient  view  by 
a  too  literal  use  of  the  personification  of  the 
State  was  driven  to  that  artificial  concep- 
tion of  unity  we  were  discussing.  Another 
shows    how    Roman    Law    superadded    to 


94      CHURCHES  IN  THE  MODERN  STATE 

Greek  the  notion  of  the  free  individual,  al- 
ways in  Roman  idea  a  tyrant  ruling  over 
slaves.  It  would  be  interesting  to  inquire 
how  much  of  the  evils  of  the  extremer 
individualism  are  due  to  the  survivals  of  a 
State  theory  generated  by  the  fact  that  the 
"  full-free "  citizen  was  legally  a  tyrant  in 
his  "familia."  The  next  passage  traces  a 
part  of  the  growth  of  the  full  conception  of 
the  State,  as  it  developed  in  the  communal 
life  of  medicBval  Europe.  It  is  this  which, 
according  to  Gierke,  rather  than  the  king- 
dom or  the  empire,  affords  the  most  valuable 
lessons  to  the  political  student.  Finally, 
another  citation  gives  Gierke's  own  views  of 
the  true  conception  of  the  State : 

Wahrend  die  Griechisclie  wie  die  romische  Ge- 
schichte  mit  dem  Staate  beginnt,  beginnt  die  Gevman- 
ische  mit  dem  Recht. 

Jedenfalls  ist  es  gewiss,  dass  bei  uns  in  die  wirk- 
liche  Welt  wie  in  das  Bewiisstsein  der  Staat  sehr  viel 
spate?-  als  das  Recht  trat. 

Es  gab  im  Grnnde  weder  ofFentliches  noch  privates, 
sondern  nur  ein  einziges,  einartiges  Recht.  Aber 
dieses  Recht  war  durch  und  durch  Recht ;  es  trug  in 
alien  seinen  Theilen  die  Merkmale  der  Gegenseitig- 
keit,  und  Erzwingbarkeit  an  sich ;  es  war  vollkommen 
selbstandig  und  sogar  so  selbstandig,  dass  es  seinerseits 


THE  GREAT  LEVIATHAN  95 

alles  staatliche  Leben  band.  OfFentliche  wie  jn-ivate 
Verhaltnisse  wurden  so  mit  dem  Stempel  der  Einen 
Rechtsidee  ausgepragt.     (Gierke,  ii.  32.) 

Der  Staat  ist  dem  Menschen  gleichartig  und  er 
unterscheidet  sich  von  ihm  nur  wie  das  Grossere  vom 
Kleineren,  er  ist  urn  so  vollkommener,  je  inehr  er 
sich  durch  seine  Organisation  dem  Menschen  niihert. 
Hieraus,  ergibt  sich  die  Anforderung  einer  Einheit  des 
Staats,  welche  gleich  der  des  Individuums  moglichst 
einfach  ist ;  einer  Einheit  in  welcher  die  Theile  ganz 
enthalten  und  nur  fiir  das  Ganze  werthvoll  sind, 
einer  Einheit,  die  zuletzt  zum  Kommunismus  drangt. 
(Gierke,  iii.  15.) 

Gehorte  zur  welthistorischen  Mission  der  Romer  die 
Schopfung  des  ersten  Privatrechts  so  war  in  dem- 
selben  Sinne  in  der  welthistorischen  Mission  der  Ger- 
manen  die  erste  Schopfung  des  offentlichen  Rechts 
enthalten.  Bei  den  Griechen  war  alles  Recht  im 
Verhaltniss  zum  Staat  unfrei,  es  gieng  nicht  bios  der 
Burger  im  Staat,  sondern  das  Individuum  im  Burger 
auf;  die  Romer  setzen  das  Privatrecht  selbstandig 
gegen  den  Staat  und  gaben  demselben  Menschen,  der 
als  Burger  im  Staat,  aufgieng  eine  individuelle  Sphare 
souverdner  Willensmacht ;  die  Germanen  zuerst  er- 
klarten  auch  die  Beziehungen  zwischen  Staat  und 
Biirgern  fiir  Recht,  und  schufen  das  offentliche  Recht 
als  Bestandtheil  des  Einen  Rechtes,  das  iiberall  sich 
selber  gleich  blieb.     (Gierke,  ii.  32.) 

Die  Stadtpersonlichkeit.  Das  offentliche  Recht 
wurde  nicht  durch  den  absoluten  Willen  eines  dem 
Biirger  gegeniiber  schrankenlosen  Staatsgewalt  als  von 
aussen  kommende  unabiinderliche  Zwangsnorm  hinge- 
stellt ;  es  war  vielmehr  das  gesetz  welches  der  dem 
biirgerlichen    Organismus    immanente   und    von    alien 


96      CHURCHES  IN  THE  MODERN  STATE 

seinen  Gliedern  getragene  Gemeinwille  sich  selber 
setzte.  Daher  wurde  denn  auch  die  Stetigkeit  des 
ofFentlichen  Rechts  vor  Erstarrung  dadurch  gewahrt, 
dass  der  freien  Selbstbestimmung  und  dem  bewussten 
Entschluss  des  ofFentlichen  Willens  die  Anderung 
anheimgestellt  und  iiberdies  auch  innerhalb  des 
objectiv  fast  gestellten  Rahmens  ein  bestimmtes 
Bewegungsfeld  frei  gelassen  ward.  Im  Gegensatz  zu 
dem  von  der  Vielheit  der  Individuen  ausgehenden 
Privatrecht  gieng  allerdings  das  ofFentliche  Recht  von 
der  Einheit  des  Gemeinwesens  aus ;  aher  dieses  Gemein 
wesen  war  ein  Organismiis,  dessen  Gliederung  und  Organisa- 
tion selhst  unter  das  Recht  Jiel.  Deshalb  erzeugte  auch 
fiir  den  von  ihm  geregelten  Kreis  das  ofFentliche  Recht 
keineswegs  nur  ei7iseitige  Befugnisse  der  Stadt  als  solcher 
und  willenlose  Unterwerfung  der  Bilrger  j  sondern  es 
erzeugte  gegenseitige  Beziehungen  zwischen  dem 
Ganzen  und  seinen  Theilen,  die  als  Glieder  einer  hbheren 
Eiiiheit  dennock  zusleich  selhstandise  Einheiten  blieben. 
So  war  es  moglich  trotz  der  Erhebung  der  Stadt  zum 
Staat  die  Rechtsnatur  des  ofFentlichen  Rechtes  bei- 
zubehalten  und  demselben  trotz  der  Emancipation 
vom  PrivatrechtsbegrifF  vollen  gerichtlichen  Schutz 
zu  gewahren.     (Gierke,  ii.  64>6.) 

Der  StaatsbegrifF. 

Der  Staat  ist  die  Person  gewordene  hochst  Allge- 
meinheit.  Er  unterscheidet  sich  daher  von  alien 
anderen  Verbandsperson  dadurch  dass  es  nichts  ihm 
Aehnliches  mehr  iiber  ihm  gibt.  Er  ist  aber  andrer- 
seits  nur  das  letzte  Glied  in  der  Reihe  der  zu  Per- 
sonen  entwickelten  Verbande,  indem  er  gleich  ihnen 
den  verbunden  Individuen  gegeniiber  den  gemeinheit- 
lichen  Willen  zur  rechtlichen  Einheit  verkorpert. 

Der  StaatsbegrifF  ist  daher  zAvar  nicht  der  Gegensatz 


THE  GREAT  LEVIATHAN  97 

des  Kdj'perschaftshegiiffes,  aher  er  ist  wetter  tind  enger 
als  dieser.  Er  ist  weiter  well  er  nicht  nur  als  hochste 
Steigerung  des  korperschaftsbegriffes,  sondern  auch 
als  hochste  Steigerung  des  AnstaltsbegrifFes  zur  Er- 
scheinung  kommen  oder  auch  Korporative  und  anstalt- 
liche  Momente  in  sich  verschmelzen  kann.  Er  ist  aber 
anderseits  enger,  weil  der  KorperschaftsbegrifF  eine 
Reihe  weiterer  Merkmale  in  sich  aufnehmen  miissen,  um 
zum  StaatsbegrifFzu  werden.  Da'  Staat  kann  also  Korper- 
schaft  sexn,  kann  aber  auch  jedes  Korporativen  Charakters 
enthehren.  Die  Korperschaft  aber  wird  nothwendig  zum 
Staat,  sobald  sie  als  hochster  und  unifassendster  Ver- 
band  auf  einen  bestimraten  Gebiet  fiir  Erreichung  des 
menschlichen  GemeinschaftsAverkes  schlechtin  kon- 
stituirt  ist.  Der  korporative  Staat  lasst  sich  als 
staatliches  Gemeinwesen,  der  anstaltliche  Staat  als 
Obrigkeitsstaat  bezeichnen,  dazwischen  aber  liisst  sich 
in  mannichfacher  Weise  eine  Kombination  korpora- 
tives  und  anstaltlicher  Elemente  als  Erscheinungsform 
der  Staatsidee  vorstellen. 

Weil  es  zu  alten  Zeiten  Verbande  iiber  den  Einzelnen 
gab,  immer  aber  unter  diesen  Verbanden  ein  hochster 
sein  musste,  existirte  Staatliches  von  je.  Allein  der 
Staat  blieb,  so  lange  die  Verbandspersonlichkeit 
sich  mit  der  Rechtssubjectivat  eines  Herrn  oder 
eine  Gesammtheit  deckte,  in  seinen  sinnlichen 
Trjigern  latent.  Der  Staat  als  Person  war  weder  in 
das  Bewusstsein  noch  in  das  Leben  getreten,  und  es 
fehlte  folgeweise  an  einer  selbstandigen  und  nur 
durch  ihr  eignes  inneres  Wesen  bestimmten  Staats- 
existenz.  Das  Staatliche  kam  nirgend  fiir  sich  und 
rein,  sondern  iiberall  in  konkreter  Bindung  und  zu- 
falliger  Triibung  durch  Individuelles  zur  Erschcinung. 

Sobald  indess  irgendwo  die  einen  bestimmten  Ver- 

G 


98     CHURCHES  IN  THE  MODERN  STATE 

band  durchdringende  Einheit  als  Person  gesetzt  war, 
musste  insoweit,  als  diese  Einheit  die  in  ihrer  Art 
hochste  war,  der  StaatsbegrifF  gegeben  sein.  Insbe- 
sondere  musste  sich  daher  auch  der  Korperscliafts- 
begrifF,  wenn  einmal  entwickelt,  auf  seiner  jeweilig 
hochsten  Stufe  sofort  zum  StaatsbegrifF  steigern. 

So  war  denn  in  der  That  die  Stadt,  weil  sie  die 
erste  und  zunachst  in  ihrer  Art  hochste  Korperschaft 
war,  zugleich  der  alteste  wahre  und  fiir  sich  beste- 
hende  deutsche  Staat.  Der  StaatsbegrifF  aber  kam 
an  ihr  in  der  besonderen  form  des  biii-gerlichen  Ge- 
meinwesen  zur  Erscheinung.     (Gierke,  ii.  831.) 


LECTURE    III 

THE    CIVIC    STANDPOINT 

So  far  our  course  has  been  clear.  We  have 
seen  that  the  essential  minimum  of  any 
claim  we  make  for  the  Church  must  depend 
on  its  recognition  as  a  social  union  with  an 
inherent  original  power  of  self-development, 
acting  as  a  person  with  a  mind  and  will  of 
its  own.  All  other  matters  between  Church 
and  State  are  questions  of  detail ;  and  there 
is  room  for  mutual  concession.  What  is 
not  a  detail  but  a  principle  is  that  which  I 
have  put  forward,  and  we  have  seen  that 
this  is  not  granted ;  that  it  is  opposed  by 
the  prevailing  opinion  of  State  omnipotence 
entrenched  in  popular  thought,  and  still 
more  so  in  the  opinion  of  lawyers ;  that  the 
doctrine  to  which  we  are  opposed  is  no 
novelty,  nor  is  it  specifically  modern,  but 
that  it  owes  its  force  to  the  continuance  of 
age-long  traditions,  to  the  survival  of  the 


100    CHURCHES  IN  THE  MODERN  STATE 

State  idea  of  the  ancient  world  related  most 
completely  to  the  Athens  of  Aristotle,  but 
developed  and  heightened  with  all  the 
majesty  of  Imperial  Rome,  and  inherent  in 
the  Canon  no  less  than  the  Civil  Law. 
Further,  we  have  seen  that  this  false  con- 
ception of  the  State  as  the  only  true 
political  entity  apart  from  the  individual  is  at 
variance  not  only  with  ecclesiastical  liberty, 
but  with  the  freedom  of  all  other  communal 
life,  and  ultimately  with  that  of  the  indi- 
vidual ;  moreover,  that  it  is  fast  breaking 
doAvn  under  the  pressure  of  the  historical 
jurists  like  Dr.  Gierke  and  Maitland,  and 
the  fact  of  the  innumerable  developments 
of  the  associative  instinct  and  of  the  positive 
political  facts  of  a  modern  world-empire. 
All  these  developments  are  facts  ;  although 
it  may  not  be  impossible  to  harmonise  them 
verbally  with  the  old  cast-iron  definitions 
of  sovereignty  and  law,  such  modification 
destroys  the  original  conception,  while  in 
the  treatment  of  corporate  life  there  arise 
serious  practical  dangers.  Our  first  aim, 
then,  must  be  to  endeavour  to  induce  men 
by  persuasion  and  all  means  morally  legiti- 
mate to  admit  the  positive  right  of  societies 


THE  CIVIC  STANDPOINT  101 

to  exist,  and  in  tliis  we  shall  follow  the 
example  which  was  the  origin  of  civil  free- 
dom. In  the  seventeenth  century  it  was 
not  the  isolated  individual  but  the  religious 
body,  the  sect  with  its  passionate  assertion 
of  its  own  right  to  be,  which  finally  won 
toleration  from  the  State.  By  himself 
apart  from  religious  discords  the  individual 
would  have  secured  no  freedom.  The  orgy 
of  State-autocracy  which  set  in  with  the 
Renaissance  and  was  developed  by  the 
Reformation  would  have  gone  on  unchecked, 
as,  indeed,  it  did  in  those  States  like  France 
or  the  German  principalities  in  which  unifor- 
mity in  religion  was  enforced.  It  was  the 
competing  claims  of  religious  bodies,  and 
the  inability  of  any  single  one  to  destroy 
the  others,  which  finally  secured  liberty. 
The  rights  of  man  were  their  recognition 
of  the  sense  of  his  duties  towards  God. 
Political  liberty  is  the  fruit  of  ecclesiastical 
animosities. 

Now,  however,  we  are  but  at  the  thres- 
hold of  our  task.  Once  it  has  been  realised 
as  a  problem  of  universal  importance,  a 
matter  whicli  concerns  not  clerical  privilege 
but  tlie  very  idea  of  corporate  society,  and 


102    CHURCHES  IN  THE  MODERN  STATE 

involving  the  whole  problem  of  the  true 
nature  alike  of  the  State  and  the  persons 
natural  and  juristic  of  w^hich  it  is  composed, 
we  shall  see  that  we  are  faced  by  further 
questions  as  to  our  duty  as  citizens  and 
the  limits  which  this  freedom  now  claimed 
must  place  upon  our  efforts  to  influence  the 
law  of  the  land.  Countless  other  questions 
will  also  arise,  which  I  shall  not  do  more 
than  indicate.  The  right  of  the  individual 
to  liberty  and  self- development  does  not 
imply  his  right  to  do  anything  he  pleases. 
Even  so  strong  an  individualist  as  Herbert 
Spencer  was  wont  to  guard  the  security  of 
the  liberty  of  each  by  reference  to  the  equal 
liberty  of  all.  If  this  be  the  case  with  in- 
dividuals, it  must  still  more  plainly  be  so 
with  all  societies.  For  in  the  nature  of 
things  they  are  more  powerful  than  indi- 
viduals ;  the  relative  disinterestedness  they 
claim  from  their  members  may,  and  often 
will,  lead  to  methods  and  claims  which 
cannot  be  justified  ;  the  higher  their  object, 
the  greater  danger  there  is  of  their  out- 
stepping the  bounds  of  justice  in  their  de- 
sire to  promote  it ;  and  the  greater  need, 


THE  CIVIC  STANDPOINT  103 

therefore,  of  government  regulation  and 
control.  Moreover,  while  the  question  of 
the  recognition  of  the  individual  citizen 
is  one  that  can  be  solved  with  no  trouble, 
the  registration  of  a  society  and  the  deter- 
mination of  the  marks  which  indicate  its 
full  legal  personality  are  more  complex  ;  and 
however  strongly  we  may  assert  the  natural- 
ness of  the  corporate  life,  no  one,  I  believe, 
would  deny  the  duty  of  the  State  to  de- 
mand proper  proofs  that  it  is  being  formed 
and  supplied  with  duly  constituted  organs 
of  its  unity ;  while,  further,  it  must  clearly 
be  within  the  province  of  the  State  to  pre- 
vent bodies  of  persons  acting  secretly,  and 
practically  as  corporations,  in  order  to  escape 
the  rightful  government  control.  This,  I 
suppose,  is  half  the  difficulty  of  the  trust 
problem  in  America.  In  regard  to  religion, 
the  State  as  "  a  power  ordained  by  God " 
ought  not  to  allow  men  so  to  use  the  great 
truth  of  freedom  as  to  be  false  to  the  ends 
of  civil  society.  No  one,  I  suppose,  would 
now  demand  that  the  officers  of  corporate 
bodies  should  not  pay  their  debts,  or  claim 
that  the  State  may  not  use  force  to  compel 


104    CHURCHES  IN  THE  MODERN  STATE 

them.^  Great  as  may  be  this  freedom,  we 
have  large  tracts  of  life  dependent  on  pro- 
perty and  contract,  which  must  come  within 
the  control  of  the  civil  power.  Here,  how- 
ever, there  may  be  one  kind  of  exception. 
Within  any  social  group,  if  the  members 
are  sufficiently  loyal,  there  may  grow  up 
all  kinds  of  ties  and  arrangements  which 
could  not  be  enforced  at  law,  and  yet  are 
practically  restrictive.  For  instance,  at  this 
moment  there  is  no  restriction  on  pubh  ca- 
tion except  that  provided  by  the  law  of 
libel,  yet  the  bulk  of  works  published  by 
Roman  Catholics  have  on  them  an  impi'i- 
matu7\  This  is  a  restriction  not  legally 
enforceable,  but  dependent  on  the  loyalty 
to  their  own  authorities  of  the  members  of 
the  Roman  Church.  It  would,  however, 
be  a  distinct  invasion  of  the  province  of 
that  Church  if  the  courts  were  to  interfere 

^  "  Saeculares  judices  qui,  licet  ipsis  nulla  competat 
jurisdictio  in  hac  parte,  personas  ecclesiasticas  ad  sol- 
vendum  debita,  super  quibus  coram  eis  conti-a  ipsas 
earum  exhibentur  literae  vel  prelationes  aliae  inducun- 
tur,  daranapili  praesumptione  compellunt,  a  temeritate 
hujusmodi  per  locorum  ordinaries  censura  eeclesiastiea 
decernimus  compescendos."  —  Co7-pi/s  Juris  Caiionici, 
Sext  II.  ii.   2. 


THE  CIVIC  STANDPOINT  105 

with  the  excommunication  of  anyone  on 
the  ground  that  he  had  contravened  this 
regulation.  Even  now  between  families 
and  individuals  a  vast  amount  of  arrange- 
ments go  on  which  could  not  be  legally- 
enforced  ;  nor  will  this  ever  cease  to  be 
needful.  Except  in  a  small  and  highly- 
undeveloped  society,  very  many  transactions 
must  take  place  which  depend  for  their 
validity  on  the  character  of  men,  and  not 
on  any  legal  instrument.  Another  instance 
is  the  matter  of  monastic  vows.  These  are 
not  now  a  legal  obligation,  but  that  they 
have  a  very  practical  effect  is  not  doubtful. 
Certain  exceptions  do  not  prove  the  con- 
trary, any  more  than  the  existence  of 
criminals  proves  the  law  to  be  of  none  effect. 
In  regard  to  the  matter  of  Churches,  it 
is  necessary  to  lay  stress  on  the  fact,  that 
what  we  claim  is  freedom  within  the  limits 
of  civil  society,  and  that  we  neither  claim 
to  be  outside  the  law  nor  to  exercise  con- 
trol over  politics.  For  the  whole  question 
is  prejudiced  by  recollections  of  the  JNIiddle 
Ages  and  the  seventeenth  century.  Then, 
in  one  sense  the  Church  was  free,  or  seemed 
to  be  so ;  but,  as  I  said  last  time,  she  was 


106    CHURCHES  IN  THE  MODERN  STATE 

still  under  the  same  notion  of  State  auto- 
cracy as  that  of  the  ancient  world,  and 
consequently  she  understood  by  freedom 
supremacy :  she  demanded  the  proscription 
of  all  those  who  did  not  accept  her  discip- 
line :  she  identified  citizenship  with  Church- 
manship,  and  she  claimed  to  dictate  on 
religious  grounds  the  law  and  policy  of  the 
State.  Much  of  the  prejudice  against  the 
just  claims  of  religious  bodies  arises  from 
the  recollection  of  these  facts,  and  the  evils 
of  clerical  immunities.  Benefit  of  clergy 
in  the  Middle  Ages  had  more  in  its  favour 
than  is  often  supposed ;  it  served  to  mitigate 
the  barbarity  of  the  ordinary  law,  and  it  set 
limits  to  a  royal  authority  which  was  striv- 
ing by  every  means  to  become  absolute. 
Yet  it  did  mean  the  definite  withdrawal, 
not  of  all  justice,  but  of  the  protection 
afforded  by  the  King's  Courts  from  all  persons 
injured  by  a  clerk,  and  you  know  how 
wide  was  the  interpretation  given  to  this. 
Boniface  VIII,  at  the  close  of  the  thir- 
teenth century,  went  further,  and  denied 
the  right  of  the  civil  courts  to  enforce  the 
payment  of  debts  by  the  clergy,  and  of  the 
State  to  tax  them  in  the  famous  Bull  Clericis 


THE  CIVIC  STANDPOINT  107 

Laicos.  Boniface  VIII  went  further  than 
his  predecessors,  and  definitely  laid  claim 
to  a  world  monarchy  in  the  Bull  Unam 
Sa7tctam.^  This  Bull  was  never  an  authori- 
tative part  of  the  Co7yus  Juris  Canonici  ; 
but  he  did  not  do  more  than  develop 
the  claims  inherent  in  the  Canon  Law 
and  in  the  policy  and  utterances  of  such 
popes  as  Gregory  VII,  Innocent  III,  and 
Innocent  IV. 

It  is  perhaps  well  to  say  that  we  must 
acquit  modern  Rome  of  any  such  claim. 
We  may  all  have  our  private  opinion  as  to 
what  would  happen  if  she  were  once  more 
in  a  position  to  make  it ;  and  so  far  as  can 
be  judged  from  the  case  of  JNIalta,  the  curia 
has  no  notion  of  allowing  religious  tolera- 
tion, except  where  it  cannot  be  helped. 
Be  this  as  it  may,  it  remains  true  that  the 
theory  of  Ultramontanism,  as  laid  down 
now,  does  not  involve  the  absorption  of 
the  State  in  tlie  Church,  or  the  denial  of 
civil  society  as  a  fact.  In  the  Encyclical 
Immortale  Dei,  issued  in  1885  by  Leo  XIII,^ 

^  It  is  one  of  tlie  Common  Extravagants,  i.  8,  1 . 
'^  Printed  in  Denziger  Enchiridion,  501-8.     "  Ex  iis 
autem     Pontificum    praescriptis    ilia    oranino    intelligi 


108    CHURCHES  IN  THE  MODERN  STATE 

Rome  has  developed  for  herself  the  doctrine 
that  the  Church  is  a  perfect  society  set  over 
against  the  other  perfect  society,  the  State ; 
and  not  theoretically  claiming  more  than 
liberty.  This  position  is  not  identical  with 
that  here  taken  up,  for  the  whole  Koman 
tradition,  which  is  based  on  the  Civil  and 
Canon  Law,  is  steeped  in  the  doctrine  of 
fictitious  personality.  Yet  at  least  it  would 
pave  the  way  for  a  truer  notion  of  the 
relation  of  the  State  and  the  Church,  than 
that  possible  to  an  age  which  in  no  way 
recognised  the  possibility  of  two  societies 
quite  distinct  in  nature  and  end,  although 
composed  of  the  same  individuals.  So  far 
as  I  know,  this  conception  of  the  two  social 
persons  was  first  put  down  by  Bishop 
AVarburton  in  his  Alliance  between  Church 

necesse  est,  ortum  publicae  potestatis  a  Deo  ipso  non 
a  multitudine  repeti  oportere ;  seditionum  licentiam 
cum  ratione  pugnare.  .  .  .  Similiter  intelligi  debet, 
Ecclesiam  societatem  esse,  non  minus  quam  ipsam 
eivitatem,  genere  et  jure  perfectam ;  neque  debere  qui 
summam  imperii  teneant,  committere,  at  sibi  servire 
aut  subesse  Ecclesiam  cogant  aut  minus  esse  sinant  ad 
suas  res  agendas  liberam,  aut  quicquam  de  ceteris 
juribus  detrahant,  quae  in  ipsam  a  Jesu  Christi 
collata  sunt "  (503).  The  Encyclical  goes  on  to  assert 
the  indifference  of  the  forms  of  civil  government. 


THE  CIVIC  STANDPOINT  109 

and  State,  although  here  and  there  ap- 
proaches had  been  made  to  it/  However 
this  may  be,  there  is  no  doubt  that  as 
soon  as  men  were  beginning  to  think  of 
the  State  and  the  Church  as  each  of 
them  a  societas  perfecta,  they  were  on  the 
way  to  a  more  reasonable  theory  of  the 
relations  between  the  two,  than  that  which 
was  possible  to  the  mind  dominated  by  the 
antique  idea  of  the  unitary  absolute  State ; 
whether  that  idea  took  the  form  predomi- 
nantly political  of  Aristotle  or  Bodin,  or 
the  form  predominantly  theocratic  of  St. 
Augustine  and  Luther.  In  the  discussions 
of  the  sixteenth  century  we  begin  to  hear  of 
this  theory.  Some  of  the  Jesuits  saw  in  it 
the  means  of  defending  the  claims  of  the 
Church  while  supporting,  at  least  in  name, 
those  of  the  State.  The  French  royalists 
of  the  next  century,  like  Barclay,  developed 

^  Thorndike,  for  instance,  in  his  Right  of  the  Church 
in  a  Christian  State,  speaks  clearly  of  the  two  societies 
as  distinct,  although  composed  of  the  same  individuals. 
And  this  book  had  much  influence.  A  similar  claim 
to  freedom  is  put  out  by  Stillingfleet  in  his  Irenicum. 
Neither,  however,  had  reached  the  notion  of  persons ; 
although,  of  course,  the  Presbyterians  held  the  doctrine 
of  the  two  societies.     Cf.  Appendix  I. 


110    CHURCHES  IN  THE  MODERN  STATE 

it  from  the  opposite  standpoint.  In  this 
country  the  notion  of  the  two  kingdoms, 
which  was  substantially  the  same,  was 
asserted  by  Thomas  Cartwright,  the  leader 
of  the  Presbyterians,  thereby  provoking 
the  astonished  horror  of  Archbishop  Whit- 
gift,  just  as  the  ordinary  doctrine  of  the 
Divine  Right  of  the  State  was  termed 
by  the  Jesuit  Gretser  Machiavellistica  ae 
Turcica.  In  the  nineteenth  century  the 
theory  was  worked  out  in  detail  by 
Camillo  Tarquini  in  his  Juris  Ecclesiastici 
PiibUci  Institiitiones,  and  Palmieri  in  his 
Tractatus  de  Romano  Ponfifice.  Both 
writers  were  Jesuits.  Modern  Ultramon- 
tanism,  as  developed  by  Eckstein,  Mohler, 
and  their  friends,  had  something  to  do 
with  this  development.  They  saw  the 
necessity  of  accepting  the  modern  State, 
while  as  convinced  and  even  passionate 
adherents  of  the  Roman  Church  they 
re-claimed  for  the  religious  society  a 
wider  liberty  than  that  allowed  by  anti- 
clericals.  On  this  topic  of  the  ultramon- 
tane scholars  of  the  earlier  nineteenth 
century,  there  is  a  very  valuable  early 
essay  by  Acton  in  the  Home  and  Foreign 


THE  CIVIC  STANDPOINT  111 

Review^  for  July  1863,  out  of  which  I  quote 
the  following  description : 

"  The  name  of  Ultramontanes  was  given  in 

1  This  has  not  been  reprinted.  There  is  an  article, 
I  believe,  by  Richard  Simpson,  on  ''The  Individual, 
the  Corporation,  and  the  State,"  in  the  Rambler  for 
May  1862,  which  sets  forth  the  whole  topic  of  this 
lecture  with  great  insight  and  lucidity.  I  may  cite  the 
following  passages  : 

"  This  theory  of  State  absolutism  supposes  the  State 
to  be  prior  to  all  associations  ;  it  assumes  that  they 
must  all  ask  its  leave  to  exist  before  they  have  any 
right  to  be ;  and  therefore  that  it  has  a  continual  right 
of  inspection  and  supreme  control  over  them.  Hence 
it  must  follow  that  freedom  is  no  general  right,  but 
a  collection  of  liberties  and  immunities  granted  as 
concessions  and  compromises  by  the  absolute  power." 

"  The  true  aim  of  politics  is  to  harmonise  the  three 
elements  of  the  State — the  free  individual,  the  free 
corporation,  and  the  free  State — in  such  stability  of 
equilibrium  as  shall  leave  to  each  the  greatest  amount 
of  free  scope  that  is  possible  without  injury  to  others. 
There  must  be  some  combination  of  the  absolute 
corporation,  the  absolute  State,  and  the  absolute  person 
from  the  harmony  of  which  the  truest  personal  freedom 
arises,.  Taken  singly  by  itself,  each  of  these  elements 
characterises  a  barbarous  kind  of  existence.  The 
absolute  individual  is  found  only  in  savage  life ;  the 
absolute  corporation  in  primitive  patriarchal  society ; 
the  absolute  State  in  oriental  despotisms." 

One  interest  of  the  article  arises  from  the  perception 
by  the  writer  of  the  point  urged  in  the  text,  namely, 
the  peculiar  survival  in  English  life  of  the  true  way 
of  treating  the  relation  of  the  three. 


112    CHURCHES  IN  THE  MODERN  STATE 

consequence  of  their  advocacy  of  the  free- 
dom of  the  Church  against  the  civil  povi^er ; 
but  the  characteristic  of  their  advocacy 
was,  that  they  spoke  not  specially  for  the 
interests  of  religion,  but  on  behalf  of  a 
general  principle,  which,  while  it  asserted 
freedom  for  the  Church,  extended  it 
likewise  to  other  communities  and  insti- 
tutions." 

Now  it  is  this  recognition  of  the  modern 
State  which  I  desire  to  urge  to-day.  It 
may  seem  impertinent,  if  not  absurd,  to 
talk  as  though  anyone  was  likely  to  ignore 
a  fact,  no  less  patent  than  the  sun  at  noon- 
day. But  I  think  that  the  language  some- 
times used  by  supporters  of  the  claims  of 
the  Church  makes  it  less  unnecessary  than 
appears.  We  cannot  eat  our  cake  and 
have  it.  We  cannot  claim  liberty  for 
ourselves,  while  at  the  same  time  proposing 
to  deny  it  to  others.  If  we  are  to  cry 
"hands  off"  to  the  civil  power  in  regard 
to  such  matters  as  marriage,  doctrine,  ritual, 
or  the  conditions  of  communion  inside  the 
Church — and  it  is  the  necessary  condition 
of  a  free  religious  society  that  it  should 
regulate  these  matters — then  we  must  give 


THE  CIVIC  STANDPOINT  113 

up  attempting  to  dictate  the  policy  of  the 
State  in  regard  to  the  whole  mass  of  its 
citizens.  "  Them  that  are  without  God 
will  judge."  We  are  both  citizens  and 
Churchmen.  We  have  to  try  to  look  at 
all  these  matters  alike  from  the  ecclesiastical 
and  from  the  civic  standpoints.  We  have, 
as  members  of  the  Church,  the  right  and 
duty  to  claim  freedom  within  this  society 
for  its  own  laws,  ideals,  and  development ; 
as  members  of  the  State  we  have  to  think 
and  to  vote  for  what  is  the  wisest  course 
in  a  nation  of  which  many  of  the  Christians 
refuse  to  submit  to  our  discipline,  and 
many  are  not  Christian  at  all.  As  citizens 
we  have  no  right  or  claim  to  appeal 
to  motives  or  ideals  specifically  Christian, 
or  to  lay  down  lines  of  policy  which 
have  no  meaning  except  from  the  stand- 
point of  the  Catholic  Church.  We  must 
recognise  facts  even  where  we  do  not  like 
them. 

The  cardinal  fact  which  faces  us  to-day  is 
the  religious  heterogeneity  of  the  modern 
State.  Toleration  has  not  yet  produced  all 
its  fruits ;  perhaps  it  is  nowhere  quite  com- 
plete.    Still  it  is  clear  that  the  old  ideal  of 

H 


114    CHURCHES  IN  THE  MODERN  STATE 

a  uniform  State  religion  has  departed.  The 
homogeneous  polity  of  the  Middle  Ages  and 
the  seventeenth  century  has  vanished  like 
the  shadow  of  a  dream,  although  some  of  its 
results  still  survive.  So  far,  indeed,  as  this 
ideal  has  vitality  now,  it  takes  the  vague 
form  of  undenominational  Christianity, 
which  so  many  would  like  to  establish  in 
the  schools,  and  a  certain  number  of 
persons,  including  that  amazing  theological 
instructor,  the  Spectator  newspaper,  are 
definitely  trying  to  make  compulsory  in  the 
Church.  That  is  the  danger.  You  can  go 
on  preaching  the  notions  which  are  ulti- 
mately those  of  a  theocracy  if  you  will, 
but  so  far  as  you  are  successful  you  cannot 
do  more  than  establish  the  ideals  of  the 
man  in  the  street.  To  the  Catholic  Church 
you  will  do  no  benefit,  unless  it  be  one  to 
cause  her  to  be  persecuted ;  but  you  will 
not  impossibly  end  by  the  establishment 
and  endowment  of  the  Pleasant  Sunday 
Afternoon. 

There  is,  indeed,  one  basis  on  which  the 
Church  as  a  Church  can  claim  to  dictate 
in  matters  of  policy ;  but  the  basis  is 
that  of  the  discarded  doctrine  of  religious 


THE  CIVIC  STANDPOINT  115 

uniformity  with  its  corollary  in  persecution. 
If  you  are  prepared  to  advocate  that,  by  all 
means  do  so.  Most  people  are  not.  Into 
this  question  of  persecution  I  shall  not 
enter;  but  it  is  well  to  consider  it  with 
critical  eyes.  Much  inflated  rhetoric  is 
devoted  to  the  topic  of  the  wickedness  of 
all  persecution,  very  often  by  persons  who 
are  advocating  measures  which  are  essen- 
tially of  that  nature.  Probably  no  one  has 
reflected  on  the  subject  without  finding 
that  it  is  far  more  difficult  to  condemn 
persecution  absolutely  and  in  theory  than 
the  popular  axiom  would  suggest.^ 

To  begin  with,  we  can  most  of  us  see 
the  evils  of  the  intellectual  anarchy  of  our 
time,  and  the  lack  of  all  directing  ideals  in 
the  Western  World  except  those  vulgarly 
materialistic.  Is  not  all  this  the  direct 
consequence  of  the  religious  toleration  and 
the  breaking  down  of  the  old  doctrine  of  a 
homogeneous   State  ?      Or  again,   Liberty y 

^  Cf.  Ritchie,  Natural  Rights,  chap,  viii.,  decides  in 
favour  of  the  use  of  the  term  "  toleration,"  because  it 
implies  a  grant  of  the  community,  and  not  an  absolute 
unlimited  right ;  cf.  also  the  close  of  F.  C.  Montague, 
The  Limits  of  Individual  Liberty;  and  A.  J.  Balfour, 
Essai^s. 


116    CHURCHES  IN  THE  MODERN  STATE 

that    characteristic    work   of    John    Stuart 
Mill,  gave  men  an  ideal  defence  of  tolera- 
tion.    But   it  was    based  on   a   distinction 
which  few  now   could  maintain — that   be- 
tween acts  purely  self-regarding  and  those 
which  are  not.     Even  if  there  are  any  acts 
of  the  former  nature,  and  it  is  very  doubtful, 
no  religious  body  nor  anyone  else  who  has 
ever  persecuted  but  would  deny  that  the 
particular  acts  complained  of  were  of  that 
kind.     Perhaps   this   distinction  would   re- 
lieve  us   of  the  sheer  persecution  for  the 
good  of  the  heretic's  own  soul,  but  it  would 
leave  all  others  untouched.     Persecution  is 
normally  condemned  on  the  ground  that  it 
tampers    with    the    individual    conscience. 
But  the  very  conception  of  personality  we 
were  developing  in  the  last  lecture  seems  to 
militate  against  this  view.    If  the  individual 
only  comes  to  himself  as  part  of  a  society, 
his    conscience    is   always   partially   social. 
Why   should    not   the    society   which   has 
made  him  what  he  is  assert  an  authority 
in  the  last  resort  coercive  against  him  ?     It 
may,  and  I  think  ought,  to  be  said  that  the 
authority  of  society  is  no  more  than  a  very 
strong  presumption ;  in  the  last  resort  the 


THE  CIVIC  STANDPOINT  117 

individual  must  decide,  and  persecution 
denies  this.  But  it  may  be  doubted  how 
far  this  will  carry  freedom  to  criticise  exist- 
ing institutions.  Again,  it  is  argued  that 
you  must  punish  acts  and  not  opinions  ;  but 
the  dissemination  of  ideas  is  an  act,  and 
under  certain  conditions  it  may  have  far 
more  practical  effect  than  an  isolated  deed. 
How  different  would  the  French  Revolution 
have  been  if  Rousseau  had  never  written  ? 
Does  anyone  suppose  that  the  writers  of  the 
Bible  were  not  producing  an  explosive,  and 
one  so  violent  that  it  is  constantly  re- explod- 
ing, very  often  to  the  intense  amazement  of 
those  who  profess  to  live  by  its  precepts  ?  Or 
again,  if  you  say  that  persecution  is  always 
wrong,  i.e.  the  application  to  force  to  sup- 
press any  kind  of  opinion  which  the  majority 
dislike,  where  are  you  to  draw  the  line  about 
actions  ?  Why  should  you  prohibit  pubhc 
lotteries  or  gaming-tables,  or  require  public- 
houses  to  be  licensed,  and  so  forth  ?  Be- 
cause they  affect  the  public  health  or 
physique,  or  may  lead  to  breaches  of  the 
peace  ?  But  so  may  a  bad  book.  Or  it 
may  be  said  that  the  final  objection  to  per- 
secution is  that  it  shuts  the  door  to  new 


118    CHURCHES  IN  THE  MODERN  STATE 

truth.  This  is  virtually  the  old  argument 
of  Gamaliel,  and  is  probably  the  soundest. 
The  danger  from  false  ideas  is  less  than  the 
danger  of  obscurantism,  and  the  consequent 
stagnating  effect  on  mind  and  morals.  Yet 
here  again  it  may  be  argued,  as  was  done 
by  Sir  James  Stephen,  that  such  a  practice 
is  at  bottom  sceptical.  No  one  who  is  cer- 
tain of  his  beliefs  can  admit  the  possibility 
of  a  new  and  valuable  discovery.  But  then 
the  same  certainty  may  guarantee  him 
against  the  danger  of  being  seduced  from 
his  allegiance.  But  how  about  the  mass 
of  men  ?  Can  we  be  sure  of  them  ?  The 
answer  is  that  in  the  long  run  the  religion 
or  belief  that  has  established  itself  amid  a 
fire  of  criticism  is  purer  than  any  other ; 
and  that  will  be  so  even  though  its  ad- 
herents are  less  numerous.^  From  the 
Christian  standpoint  the  great  advantage 
of  toleration  is  that  it  elevates  automatically 
the  life  of  the  Church.  At  this  moment 
for  every  person  we  lose,  who  has  dropped 

^  Liberty,  Equality,  Fraternity.  The  first  chapter  of 
this  book  is  a  reply  to  John  Stuart  Mill,  and  is  prob- 
ably the  ablest  polemic  in  existence  against  Mill's 
views  on  the  liberty  of  thought  and  discussion. 


THE  CIVIC  STANDPOINT  119 

a  merely  conventional  religion  owing  to  the 
greater  liberty,  we  gain  in  the  intensity  of 
the  religious  life  of  those  we  keep.  And 
we  gain  too  by  this  very  hostility.  The 
advantage  of  toleration  is  that  it  acts  auto- 
matically on  the  purity  of  religious  bodies 
and  the  reality  of  their  faith  ;  and,  where 
complete,  it  produces  a  temper  which, 
annealed  in  the  fires  of  constant  criticism, 
is  analogous  to  that  produced  by  persecu- 
tions in  the  earlier  days  of  the  Church. 
Mr.  Benjamin  Kidd  has  bidden  us  look 
forward  to  a  time  when  all  faith  will  meet 
with  such  a  fire  of  criticism  as  has  not 
before  been  known. ^  That  fire  is  already 
kindled,  and  it  purges  out  the  weaklings. 
But  all  these  topics,  and  they  might  be 
increased,  serve  only  to  show  the  difficulty 
of  the  problem. 

What  is  clear  to  me  is  this  fact.  Even 
if  some  are  unconvinced  by  the  arguments 
for  freedom,  and  look  either  backward  or 
forward  to  a  day  when  men  shall  be  organised 
in  society  on  a  basis  of  religious  unity,  it 
must  be  plain  that  we  do  not  live  in  such 

^  This  is  one  of  the  most  important  arguments  in 
his  Principles  of  Western  Civilisation. 


120    CHURCHES  IN  THE  MODERN  STATE 

an  age ;  that  there  is  nothing  to  be  gained 
by  pretending  that  we  do ;  that  whatever 
unity  of  opinion  may  underlie  or  come  to 
underhe  any  probable  polity,  it  will  not  be 
that  body  of  doctrine  which  we  know  as  the 
Catholic  Creeds.  What  we  have  to  face  is 
a  hurly-burly  of  competing  opinions  and 
strange  moralities — "  new  thought "  from 
the  West,  theosophies  from  the  East,  Pan- 
theism all  round  us,  Paganism  revived,  and 
unbelief  in  all  its  arrogance.  All  we  can 
claim,  all  we  can  hope  for,  is  freedom  for 
ourselves  as  one  society  among  many.  It 
seems  to  me  in  a  high  degree  dishonest,  and 
even  more  imprudent,  to  go  about  and  pro- 
claim the  rights  of  freedom  and  variety  in 
the  matter  of  education,  if  in  other  matters 
we  seek  to  deny  it.  Liberty  does  not  mean 
the  right  to  punch  the  heads  of  those  who 
disagree  with  you. 

l^et  me  take  one  or  two  instances.  Let 
us  take  one  burning  question — that  of  mar- 
riage. It  is  confidently  affirmed  that,  in  a 
very  brief  space  of  time,  we  shall  be  in 
possession  of  proposals  coming  with  all  the 
authority  of  a  Royal  Commission  to  increase 
the  facilities  for  divorce.     Should  such  pro- 


THE  CIVIC  STANDPOINT  121 

posals  be  made  it  will  be  our  duty  as 
Churchmen  to  fight  to  the  utmost  for  the 
liberty  to  contract  out,  if  I  may  so  put  it. 
We  need  to  have  it  perfectly  clear — in  a 
way  which  not  even  the  House  of  Lords 
can  repudiate — that  any  change  in  the  law 
of  the  land  shall  leave  entirely  unchanged 
the  freedom  of  the  Church  to  insist  on  the 
observance  of  the  Christian  law  of  mar- 
riage by  all  her  communicating  members, 
and  to  exclude  all  who  do  not.  But  as 
Churchmen  we  are  not  bound  to  go  further. 
We  shall  as  citizens  have  our  own  opinions 
as  to  what  is  for  the  national  welfare ;  we 
shall  doubtless  find  many  Positivists  who 
would  agree  with  us  that  a  really  whole- 
some standard  of  national  life  can  be  raised 
only  on  a  strict  basis  of  monogamy ;  that 
the  sexual  promiscuity,  which  is  the  real 
aim  of  the  opponents  of  marriage,  is  detri- 
mental to  the  health,  the  comfort,  and  the 
fighting  morale  and  domestic  happiness  of  the 
people.  But  it  is  no  more  a  matter  strictly 
for  the  Church  as  a  body  to  lay  down  lines 
of  policy  than  it  was  for  the  Christians  of 
the  Pagan  Empire.  The  State,  as  it  now  is, 
is  composed  not  only  of  Christians,  even  if  we 


122    CHURCHES  IN  THE  MODERN  STATE 

include  all  the  sects,  but  of  every  variety  of 
religion  and  no  religion.  One  of  the  under- 
secretaries of  His  Majesty's  Government  is  a 
person  who  varies  his  defence  of  Liberalism 
with  public  and  repeated  denials  of  the 
historic  fact  of  our  Lord's  existence ;  and 
when  he  has  spoken  of  Him,  does  so  in 
terms  of  which  the  following  is  a  specimen  : 
"  Some  of  the  sayings  attributed  to  Jesus 
have  a  relatively  high  moral  value."  ^  Such 
a  man  has  every  right  to  his  place  in  the 
modern  State  ;  but  what  guidance  can  the 
law  of  the  Christian  Church  be  as  to  what 
shall  be  the  wisest  law  to  make  in  a  society 
of  which  such  people  are  the  rulers  ?  What 
may  be  the  wisest  rule  for  a  nation  so 
heterogeneously  composed  we  cannot  from 
the  Christian  standpoint  positively  say,  and 
we  shall  probably  differ  greatly  from  one 
another.  One  consideration  may  be  urged. 
The  members  of  the  Christian  Church — 
even  when  supported  by  the  sacraments  and 
living  in  sincere  faith  in  our  Lord  as  the 
Redeemer — have  throughout  all  ages  been 

^  CJ\  J.  M.  Robertson,  Pagan  Christs :  A  Short  History 
of  Christianity.  The  phrase  quoted  comes  from  A  Short 
History  of  Free  Thought. 


THE  CIVIC  STANDPOINT  123 

retained  with  difficulty  within  these  bonds, 
and  breaches  are  not  infrequent.  Is  it  very 
probable  that  these  bonds  will  be  found 
possible  for  those  who  repudiate  the  sanc- 
tions of  Christian  morality,  who  scorn  the 
grace  proffered  to  help  the  frailty  of  our 
nature,  and  for  whom  chastity  is  not  even 
an  ideal  ? 

And  yet,  even  in  regard  to  these  matters, 
we  hear  of  meetings  of  Churchmen  repudiat- 
ing all  attempt  to  alter  the  law,  or  at  least 
to  widen  it ;  of  demanding  the  repeal  of  the 
Act  of  1857  and  going  back  to  the  status 
quo  ante,  when  divorce  was  a  luxury  for 
those  who  could  afford  to  pay  for  a  private 
Act  of  Parliament,  and  of  demanding  the 
enforcement  upon  a  population  no  longer 
even  nominally  Christian  of  the  whole  series 
of  tabooes  and  exclusions  which  Christians 
themselves  find  so  difficult.  In  other  words, 
they  are  demanding  quite  plainly  that  the 
morality  of  the  Church  as  such  shall  be 
imposed  against  their  will  upon  those  who 
owe  her  no  allegiance.  Such  demands 
seem  to  me  tenable  in  theory  only  on  the 
Puritan  or  mediaeval  notion  of  a  State,  and 
in   practice   as   absurd   as   the   proposal  of 


124    CHURCHES  IN  THE  MODERN  STATE 

John  Knox  to  punish  adultery  with  death. 
What  we  ought  as  Churchmen  to  strain 
every  nerve  to  do  is  to  secure  the  repeal  of 
that  clause  in  the  Act  of  1857  which  makes 
it  obligatory  on  an  incumbent  to  lend  his 
church  for  the  marriage  of  divorced  persons, 
and  to  see  to  it  that  anything  like  similar 
provisions  shall  be  absent  from  the  new  law, 
and  also  that  every  safeguard  shall  be  left 
to  us  as  a  society  for  enforcing  our  own 
discipline.  It  will  be  hard  enough  to  secure 
that  much.  The  judgment  of  the  House 
of  Lords  in  the  Bannister  case  has  shown 
how  words  inserted  for  one  purpose  in  a 
statute  may  be  interpreted  to  mean  pre- 
cisely the  opposite  of  what  was  intended. 
But  if  we  are  going  to  dissipate  our  energies 
in  the  attempt  to  impose  our  notions  of 
morality  by  force  on  the  entire  population, 
we  shall  infallibly  fail  in  the  latter  effort, 
and  we  shall  have  all  the  less  likelihood  of 
securing  our  own  corporate  freedom.  I  am 
not  saying  that  every  individual  among  us 
might  not  vote  or  write  against  such  pro- 
posals ;  he  may  object  to  them  as  a  change, 
or  because  they  have  this  laxity  in  America, 
or  for  its  effect  on  the  children,  or  because 


THE  CIVIC  STANDPOINT  125 

it  is  only  a  fad  of  a  few  of  the  rich,  or  be- 
cause indissoluble  marriage  is  affirmed  by 
the  law  of  nature,^  and  so  forth.  But  he 
ought  not  to  be  asked  to  oppose  them  on 
grounds  of  loyalty  to  the  Church  ;  and  he 
must  remember  that,  as  Dr.  Sanday  said, 
the  State  is  forced  to  act  on  principles  of  a 
wise  expediency,  and  to  have  regard  to  all 
the  groups  of  opinion  within  it.  On  such 
points  opinions  would  infinitely  vary,  and 
we  should  find  allies  or  opponents  in  un- 
expected places.  What  I  object  to  being 
asked  to  do  is  to  vote  one  way  or  the  other 
on  account  of  my  Churchmanship  in  matters 
which  concern  the  life  of  millions  of  people, 
many  of  whom  have  not  the  smallest  inten- 
tion of  ever  being  Churchmen.  The  Chris- 
tian law  is  the  law  of  Christians  ;  what  may 
be  wise  and  right  for  a  body  of  all  faiths 
and  every  fad  is  no  matter  for  the  Christian 
Church  to  decide. 

Other  instances  are  ready  to  hand.  There 
is  the  social  question.  Moved  by  the  in- 
tolerable wrongs  and  oppressions  of  our 
industrial    system,    with    its    spectacle    of 

^  This  is  the  ground  taken  up  by  Mr.  Lacej'  in  his 
Marriage  in  Church  and  State, 


126    CHURCHES  IN  THE  MODERN  STATE 

thousands  of  lives  maimed  and  wasted  and 
born  with  an  evil  environment,  men  are  apt 
to  claim  that  it  is  the  duty  of  Christians  as 
such  to  adopt  some  particular  remedy,  and 
to  identify  the  Gospel  with  some  definite 
organisation  of  society.  That  Churchmen 
ought  to  have  a  conscience  in  these  matters 
is  true ;  that  it  is  the  province  of  all  who 
are  teachers  in  the  Church  to  awaken  this 
conscience  and  to  make  their  hearers  far 
more  uncomfortable  than  they  are  with  the 
existing  regime  is  certain.  They  ought  to 
preach  to  them  the  duty  of  forming  political 
or  economic  opinions  with  such  regard  to 
justice,  such  careful  inquiry,  and  disin- 
terested zeal  for  the  whole  people,  and  not 
merely  a  class,  as  they  may.  They  may 
warn  them  against  the  danger  of  opposition 
to  changes  owing  to  the  prejudices  of  their 
own  environment  or  the  fear  of  being  less 
well  off.  They  ought  to  preach,  much 
more  than  they  do,  that  a  Christian  ought 
to  be  prepared  to  forego  sources  of  income 
or  methods  of  business  open  to  others,  and 
to  scrutinise  the  undertakings  from  which 
his  own  income  is  derived  ;  to  be  considerate 
to  employes,  to  servants  of  every  kind ;  to 


THE  CIVIC  STANDPOINT  127 

be  less  extravagant  in  clothes  or  ornaments 
than  those  who  are  not  Christians.  Of  this 
teaching  we  have  all  too  little.  The  aver- 
age layman  of  the  comfortable  class  seems 
to  have  little  notion  that  his  standard  ought 
to  be,  in  any  way,  higher  than  that  of  his 
neighbours  over  the  way  who  are  not  Chris- 
tians ;  and  his  sons,  and  still  more  his 
daughters,  have,  for  the  most  part,  even 
less.  Of  course  there  are  exceptions  ;  but 
I  am  speaking  of  the  ordinary  churchgoer. 
But,  whereas  so  much  is  needed  here,  too 
little  is  given.  So  far  as  many  of  those 
who  are  concerned  with  these  matters  go, 
an  effort  is  made  to  indicate  that  he  must, 
as  a  Christian,  be  in  favour  of  this  or  that 
scheme,  the  Minority  Report  of  the  Poor 
Law  for  instance,  or  else  his  attention  is 
directed  to  vast  schemes  of  social  reorgani- 
sation which  he  can  do  little  to  forward, 
and,  in  any  case,  are  unlikely  to  be 
realised,  save  in  a  far  future.  I  do  not 
say  that  he  should  not  be  directed  to  con- 
sider the  evils  of  the  capitalist  system  or 
bidden  to  seek  a  solution.  I  wish  our  con- 
gregations were  roused  to  this  more  and 
more.      But    I    do   not   think   any   policy 


128    CHURCHES  IN  THE  MODERN  STATE 

ought  to  be  forwarded  by  the  Church  as  a 
corporate  society,  and  imposed  in  its  name 
in  a  State  of  which  Churchmanship  has  no 
longer  anything  to  do  with  the  qualifications 
of  a  citizen.  Those  who  take  their  ethical 
ideas  from  Nietzsche  or  their  practice  from 
Gabriele  d'Annunzio,  are  hardly  likely  to 
be  in  favour  of  Christian  solutions ;  and 
they  have  every  whit  as  much  a  place  in 
the  State  as  you  or  I.  The  evdls  of  capi- 
talism are  "  gross,  open,  huge  as  mountains," 
and  the  oppression  of  the  poor  cries  to 
heaven;  what  we  need  to  persuade  Church 
people  is  of  their  own  duty  in  regard  to 
their  own  wealth  and  the  means  of  getting 
it.  Consider  how  vast  would  be  the  change 
if  every  regular  communicant  in  the  Church 
of  England — we  will  omit  the  rest  for  the 
moment — were  sincerely  to  embrace  the 
maxim  of  St.  Paul,  that  "  having  food  and 
raiment  we  ought  therewith  to  be  content," 
and,  without  descending  from  the  legitimate 
expenses  of  his  station,  were  for  himself  or 
his  children  to  give  up  thinking  of  a  large 
income  as  the  one  desideratum ;  were  to 
cease  judging  occupations  at  their  cash 
value ;  were  to  limit  himself  severely  in  the 


THE  CIVIC  STANDPOINT  129 

matter  of  motor-cars,  hotels,  theatres,  and 
clothes  for  his  daughters  and  to  give  the 
rest  in  charity,  and  to  spend  time  saved 
from  amusements  in  some  form  of  social 
work.  If  those  who  have  a  competence, 
whether  earned  or  inherited,  were  no  longer 
to  be  driven  by  the  ceaseless  desire  for  more 
and  ambition  for  their  children,  there  would 
be  a  revolution  in  the  face  of  things,  and 
many  of  our  problems  would  solve  them- 
selves. So  much  energy  would  be  set  free 
for  worthy  objects  that  the  tone  of  the 
nation  and  social  life  would  speedily  be 
raised.  Now,  I  do  not  see  how  such  things 
can  be  preached  to  an  agnostic  or  a 
hedonist ;  they  are  absurd  on  his  principles. 
But  they  ought  not  only  to  be  preached 
but  practised  by  all  communicant  members 
of  the  Christian  Church.  If  in  no  age  can 
we  expect  perfection  in  these  matters,  and 
must  always  allow  for  a  fringe  of  those  of 
lower  standard,  the  quiet  worldliness  of 
many  and  the  self-complacent  enjoyment 
of  position  by  really  devout  Christians  are 
perhaps  the  peculiar  evil  of  the  Church 
of  England. 

What  I  am  anxious  to  emphasize  is  that, 

I 


130    CHURCHES   IN  THE  MODERN  STATE 

primarily,  the  business  of  Christians  is  with 
the  moral  standard  of  their  own  society  and 
with  themselves  as  its  members.  The  rais- 
ing of  that  will  gradually  bring  about  the 
elevation  of  the  great  mass  of  those  who  do 
not  belong  to  it.  So  long  as  Churchmen 
do  not  see,  except  in  a  few  matters,  such  as 
Sunday  observance  and  sexual  morality, 
any  real  reason  why  they  should  have  any 
higher  standard  than  the  world  at  large,  so 
long  is  the  Christian  Church  failing  in  its 
mission.  And  the  attempt  to  confuse  this 
object  with  that  of  securing  a  better  social 
organisation  to  be  imposed  by  law  on  the 
whole  nation  seems  to  me  likely  to  enfeeble 
the  former  without  ultimately  strengthen- 
ing the  latter.  We  want  an  enormously 
heightened  public  opinion  within  the  Church, 
and  then  it  is  bound  to  affect  the  world  at 
large.  That  is  what  happened  in  the  early 
days  of  the  Church.  Any  attempt  to 
impose  the  opposite  doctrine  seems  to  me 
partly  to  be  a  survival  from  the  regime  of 
the  seventeenth  century,  and  from  the 
theocratic  ideals  which  Puritans  and  Caro- 
lines alike  inherited  from  the  JMiddle  Ages ; 
and  partly   due  to   the   definite   effort   to 


THE  CIVIC  STANDPOINT  131 

establish  an  all-embracing  humanitarian 
Church-State,  which  would  ultimately 
mean  the  destruction  of  all  freedom  in 
religious  bodies.  For  the  unitary  doctrine 
of  the  State  leads  only,  in  very  rare  in- 
stances, to  the  establishment  of  the  claims 
of  the  Church  (which  from  this  standpoint 
are  always  illegitimate),  and  then  they  only 
take  the  form  of  supremacy.  In  nine  cases 
out  of  ten  it  means  the  secularising  of  the 
Church,  and  the  dominance  of  Erastianism. 
We  can  see  this  at  the  present  moment. 
The  attempt  to  force  the  Church  law  of 
marriage  on  all,  the  refusal  to  let  the  State 
go  her  own  way  provided  we  can  go  ours, 
has  led,  as  a  matter  of  fact,  to  the  strangest 
indiscretions.  Language  is  sometimes  used 
which  appears  to  mean  that  the  House  of 
Commons  as  at  present  constituted  is  the 
true  interpreter  of  the  words  of  our  Lord 
about  adultery.  A  recent  book  by  the 
Dean  of  Ripon  on  Natural  Christianity 
shows  a  desire  to  admit  all  persons  to 
its  privileges  on  the  ground  of  nationality, 
apart  from  any  question  of  religion.  Others 
raise  the  cry  of  sectarianism  whenever  any 
attempt  is  made  to  enforce  a  rule  of  the 


132    CHURCHES  IN  THE  MODERN  STATE 

Church,  oblivious  of  the  fact  that  unless 
you  definitely  enforce  religious  belief,  the 
Christian  Church,  however  broadly  defined, 
can  be  only  a  sect,  a  part  of  the  modern 
nation.  Sectarianism,  in  the  sense  in  which 
it  is  condemned  by  Canon  Hensley  Henson, 
the  Dean  of  Ripon,  or  the  Editor  of  the 
Spectato7%  is  not  the  evil  fruit  of  High 
Churchmanship ;  it  is  the  result  of  the 
principle  of  toleration.  Where  all  beliefs 
are  held,  those  who  profess  any  one  can 
be  no  more  than  a  part,  and  thus  unity 
in  belief  will  ultimately  make  them  a 
society,  i.e.  a  sect.  Even  if  you  reduce 
Christianity  to  a  Unitarian  Modernism, 
Christians  will  still  be  distinct  from  those 
who  have  no  faith  in  the  other  world ; 
and  that  difference  will  enormously  differ- 
entiate their  whole  life  and  standards  of 
value.  Even  if  you  go  further,  and  identify 
Christianity  with  a  vague  humanitarianism, 
independent  of  faith  or  unbelief  in  God, 
still  there  will  be  those  who  do  not  hold 
it.  For  instance,  the  followers  of  Nietzsche 
would  certainly  have  been  excluded  from 
any  such  body ;  and  then  even  a  Positivist 
Christianity,  with  the  motto  of  kindness  as 


THE  CIVIC  STANDPOINT  133 

its  one  maxim,  would  have  to  be  ultimately 
separated  off,  i.e.  a  sect  in  a  world  where 
no  restriction  is  laid  upon  opinion. 

We  cannot  escape  sectarianism  even  by- 
sacrificing  the  creeds  ;  still  less  by  attempt- 
ing a  wholly  unreal  identification  of  the 
Church  with  the  nation,  an  identification 
which  had  ceased  to  represent  all  the  facts 
even  in  the  time  of  Hooker,  and  has  been 
becoming  less  true  ever  since.  Neither,  on 
the  other  hand,  in  such  a  world  can  you 
without  disaster  attempt  to  impose  the 
standards  of  the  Church  on  the  whole  mass 
of  your  countrymen,  except  in  so  far  as 
they  still  rule  in  some  matters  on  other 
grounds.  Every  attempt  to  raise  the  code 
of  the  nation  to  that  of  the  Church  leads, 
if  unsuccessful,  to  an  attempt  to  lower  the 
code  of  the  Church  to  that  of  the  world, 
because  it  proceeds  from  a  notion  that  at 
bottom  the  two  are  identical.  Thus  if  the 
lax  party  gets  the  upper  hand  it  will  compel 
the  Church  to  conform  to  its  standards,  an 
attempt  which  is  being  made  on  all  hands 
just  now.  The  two  societies  are  distinct — 
distinct  in  origin,  in  aim,  and  (if  you  liave 
toleration)    in   personnel.      The   smaller    is 


134    CHURCHES  IN  THE  MODERN  STATE 

never  likely,  as  things  are,  to  control  the 
larger.  If  she  attempt  to  do  so  she  will 
be  beaten,  and  in  the  process  be  like  to  lose 
her  own  freedom.  The  Puritans  attempted 
to  raise  the  nation  to  their  own  notions  of 
a  high  morality.  The  consequence  was  seen 
after  the  Restoration.  It  is  the  essence  of 
the  Church  to  be  different  from  the  world, 
and  her  mission  to  proclaim  that  difference. 
Whenever  men  try  to  sanctify  the  world 
by  raising  it  to  the  level  of  the  Church, 
they  commonly  succeed  only  in  lowering 
the  life  of  the  Church  to  accommodate  it  to 
the  practice  of  the  world.  The  two  centuries 
which  began  with  Pope  Boniface  VIII  ended 
with  Alexander  VI. 


LECTURE   IV 

ULTRAMONTANISM 

It  remains  to  consider  the  development 
within  the  Church  of  a  theory  analogous  to 
that  which  we  have  been  combating  in  the 
State.  From  a  human  standpoint  it  is 
the  final  and  fatal  objection  to  the  Roman 
claims  that  they  are  inextricably  bound  up 
with  this  false  theory  of  the  omnipotent 
sovereign. 

"  The  ghost  of  the  Roman  Empire  sitting 
crowned  on  its  grave  "  was  the  name  given 
to  the  Papacy  by  Thomas  Hobbes.  It  is 
this  aspect  alone  of  the  Roman  Church 
which  I  wish  you  to  consider. 

In  this  regard,  the  development  of  the 
Corpus  Juris  Canonici,  with  the  principles 
that  underlie  it,  has  merely  meant  the 
taking  over  from  the  Corpus  Juris  Civilis 
of  the  conception  of  the  sovereign  power 
of  the   Emperor,   and   its   transference    to 

136 


136    CHURCHES  IN  THE  MODERN   STATE 

the  Pope.  The  doctrine  of  the  plenitudo 
potestatis,  of  which  we  hear  in  all  their 
writing,  is  purely  the  Roman  theory  of 
sovereignty  vested  in  the  Pope.  The  dif- 
ferences are  all  in  favour  of  the  Papal  auto- 
cracy. The  Emperor  received  his  power 
by  the  grant  of  the  people,  and  according 
to  some  theories  they  may  withdraw  what 
has  been  granted.  By  this  means  a  direct 
path  was  opened  to  Rousseau's  doctrines. 
The  Pope  has  received  his  power  directly 
from  God,  and  is  therefore  in  no  way 
amenable  (unless  conceivably  in  the  case 
of  heresy).  The  Church  is  thus  conceived 
merely  as  a  State  on  the  antique  model, 
with  all  power  centred  in  the  Pope  or  de- 
rived from  him,  and  no  jurisdiction  nor  any 
rights  existing  except  expressly  or  tacitly  by 
his  delegation.  The  ultramontane  theory  of 
the  Episcopate,  and  even  of  the  Apostolate, 
while  it  does  not  claim  for  the  Pope  the 
sole  power  of  conferring  the  sacred  orders, 
derives  every  kind  of  episcopal  jurisdiction 
from  him,  and  allows  for  local  differences 
only  by  use  of  subterfuges  dear  to  the 
abstract  theorists  of  sovereignty.  Let  me 
quote  a  passage   from  the   Sext.     "  Licet 


ULTRAMONTANISM  137 

Romanus  Pontifex,  qui  jura  omnia  in 
scrinio  pectoris  sui  censetur  habere,  con- 
stitutionem  condendo  posteriorem,  priorem 
quamvis  de  ipsa  mentionem  non  faciat, 
revocare  noscatur ;  quia  tamen  locorum 
specialium  et  personarum  singularium  con- 
suetudines  et  statuta,  quum  sint  facta  et  in 
facto  consistant  potest  probabiliter  ignorare  ; 
ipsis  dum  tamen  sint  rationabilia,  per 
constitutionem  a  se  noviter  editam  nisi 
expresse  caveatur  in  ipsa,  non  intelligitur 
in  aliquo  derogare." 

Here,  then,  is  the  definite  application  to 
the  Pope  of  the  civihan  doctrine  of  the 
Emperor  as  the  source  of  all  law ;  while 
the  theory  of  his  being  ignorant  of  fact  is 
a  transparent  dodge,  through  which  it  was 
possible  to  allow  local  liberties  in  practice, 
while  denying  them  in  theory.  The  same 
quibble  was  used  by  the  great  Italian 
civilian,  Bartolus,  a  little  later  on  to  account 
for  the  practical  freedom  of  the  Italian 
City-State,  while  preserving  the  theoretic 
claims  of  imperialism ;  which  in  one  place 
he  declares  it  probably  heresy  to  question. 
Extended  to  civil  affairs  this  claim  is 
clearly  the  denial  of  all   freedom   to   the 


138    CHURCHES  IN  THE  MODERN  STATE 

secular  power.  Under  the  theory  of  the 
single  society,  which,  as  we  have  seen  in 
the  previous  lecture,  dominated  the  Middle 
Ages,  it  was  not  possible  to  claim  such 
supreme  power  for  the  Pope,  without 
subjecting  to  him  all  the  princes.  The 
doctrine  of  the  two  swords  is  a  picturesque 
symbol  of  this.  The  two  swords  which 
the  disciples  offered  to  our  Lord  in  the 
garden  typify  the  spiritual  and  the  civil 
power  respectively ;  both  are  to  be  used  for 
the  church  in  the  sense  of  the  hierarchy, 
the  spiritual  directly  and  the  temporal 
indirectly.  Thus  it  can  be  said  definitely 
by  the  clerical  protagonist  in  the  late 
mediaeval  dialogue  the  Somnium  Viridarii, 
which  sets  out  all  the  stock  arguments  on 
either  side,  that  in  the  last  resort  omnia 
jura  civilia  sunt  canonica,  and  writers  like 
Augustinus  Triumphus,  or  a  little  later 
Bozius,  would  deliberately  maintain  that 
the  Pope  was  "  king  of  kings  and  lord  of 
lords,"  and  that  the  kingdoms  were  the 
stipendia  to  their  rulers  for  doing  the  dirty 
work  of  the  Church.  This  doctrine,  how- 
ever, was  never  universal ;  an  indirect 
power,   as   asserted   by  Eellarmine   in   the 


ULTRAMONTANISM  139 

controversies  of  the  sixteenth  century,  was 
the  more  usual  form.  This  did  allow  a 
relative  independence  and  a  real  existence 
to  the  State,  and  it  paved  the  way  for  the 
doctrine  of  the  two  societies,  each  complete 
in  itself,  so  that  the  Church  with  the  Pope 
at  its  head  is  genere  et  jure  j^crfecta^  and 
will  allow  the  State  to  go  its  own  way 
provided  it  leaves  the  Church  internal 
liberty. 

It  is  not  with  the  political  and  external 
aspects  of  the  ultramontane  claim  that  we 
are  to-day  concerned,  although  it  was  need- 
ful to  point  out  how  inevitably  these  claims 
grow  up  out  of  the  belief  that  the  Pope  is 
Lord  of  the  Church  by  Divine  right,  and 
has  a  plenitudo  potestatis.  All  we  need 
to  do  is  to  consider  something  of  the  his- 
toric origin  and  juristic  nature  of  these 
claims  within  the  Church  as  the  society 
of  baptized  believers,  after  making  abstrac- 
tion of  the  numerous  conflicts  they  brought 
about  with  the  secular  power.  Further- 
more, the  strictly  theological  problem  is 
one  into  which  we  cannot  enter.  Neither 
the  actual  development  of  the  Papal  theory 
out  of  the  antique  State  and  the  civil  law, 


140    CHURCHES  IN  THE  MODERN  STATE 

nor  the  fundamental  fallacy  of  this  doctrine 
of  illimitable  sovereignty,  have  any  real 
bearing  on  the  argument  from  Divine  right. 
If  our  Lord  instituted  St.  Peter  Prince 
of  the  Apostles  in  such  a  way  that  all  their 
jurisdiction  is  derived  from  St.  Peter  either 
tacitly  or  expressly,  and  if  from  him  down- 
wards all  jurisdictions  have  been  concen- 
trated in  the  Bishop  of  Rome,  it  is  clear 
that  no  argument  concerning  the  influence 
of  the  civilian  forms  of  thought  will  destroy 
that  fact.  If  the  Petrine  texts  have  the 
meaning  which  Ultramontanes  say  they 
have,  cadit  qucestio.  All  I  am  concerned 
to  do  is  to  point  out,  that  as  a  matter  of 
historic  fact  the  phenomenon  of  the  Papacy 
appears  in  the  world  as  the  residuary  legatee 
of  the  Roman  Empire,  and  that  as  a  matter 
of  polity  the  Church  on  the  ultramontane 
theory  suffers  from  all  the  defects  which 
attach  to  the  State,  when  conceived  in  this 
abstract  fashion. 

Apart,  then,  from  this  direct  topic  of  the 
Petrine  texts,  the  arguments  by  which  this 
concentration  of  power  in  a  single  person 
are  justified,  are  precisely  the  same  as  those 
used  in  civil  matters.     There  must  be  unity 


ULTRAMONTANISM  141 

in  the  society,  or  it  ceases  to  be  one ;  to  be 
a  single  society,  a  single  head,  if  not  essen- 
tial, is  most  convenient ;  the  psychological 
struggles  inside  the  mind  of  a  monarch  are 
less  likely  to  cause  division  than  the  conflicts 
within  a  governing  assembly.  The  bees  and 
geese  have  autocrats.  Peace,  the  very  end 
of  all  polity,  and  especially  Church  polity, 
is  unthinkable  without  a  power  absolutely 
sovereign.  The  power  of  dispensing  laws — 
and  we  know  the  Pope  has  that — implies  a 
complete  authority  over  them.  Earthly  rule 
must  be  a  copy  of  the  heavenly ;  God  is  a 
single  individual  ruling  as  an  autocrat;  so 
must  be  the  Pope.  It  is  noteworthy  that 
this  doctrine  of  sovereignty  leads  in  the  long 
run  to  false  views  of  God,  no  less  than  of 
the  State ;  in  order  to  assert  it  freely,  man's 
liberty  has  to  be  denied.  If  you  will  take 
the  trouble  to  glance  either  through  Calvin's 
Institutes  or  Luther's  De  Servo  Arbitrio, 
you  will  see  that  in  both  cases  the  denial 
of  freedom  to  man  comes,  not  like  that  of 
modern  determinism  from  an  analysis  of 
human  psychology,  but  from  a  determina- 
tion to  preserve  God's  omnipotence  at  all 
costs,  and  a  deductive  argument  from  the 


142    CHURCHES  IN  THE  MODERN  STATE 

doctrine  of  the  unity  and  freedom  of  the 
Divine  autocrat.  The  fault  of  the  Calvinist 
theology  is  that  its  one  governing  prin- 
ciple on  w^hich  all  else  lies  is  the  absolute 
sovereignty  of  God ;  instead  of  starting  from 
the  love  of  God  and  working  on  to  the 
notions  of  His  government  and  the  self- 
limitation  involved  alike  in  the  incarnation 
and  the  creating  of  free  beings,  Calvin 
starts  from  the  notion  of  God  as  a  princeps 
legibus  solutus,  who  has  omnia  jura  in  sannio 
pectoris  sui,  and  deduces  from  thence  the 
whole  hideous  spectacle  of  predestined  evil 
and  unavoidable  damnation.  If  this  view 
were  true,  and  it  is  still  widely  credited,  the 
blasphemy  of  Omar  could  be  justified  : 

"  Oh  !  Thou  who  did  the  clay  of  baser  metal  make, 
And  even  with  Paradise  devise  the  snake : 
For  all  the  sin  wherewith  the  face  of  earth 
Is  blackened — man's  forgiveness  give — and  take  !  " 

The  civilian  conception  of  Papal  sove- 
reignty, to  give  things  their  true  names, 
did  not  establish  itself  without  a  struggle. 
Latent  for  a  time  in  the  very  fact  of  the 
Pope  as  living  at  the  centre  of  the  ancient 
world,  it  developed  itself  out  of  the  need 


ULTRAMONTANISM  143 

of  organising  and  ruling  the  child  races  of 
the  conquering  barbarians.  The  revival  of 
Roman  Law  in  the  University  of  Bologna, 
coupled  with  the  growing  powers  of  the 
Popes,  caused  the  interpreters  of  Papal 
decisions  to  desiderate  a  body  of  scientific 
doctrine  like  the  great  Corpus;  with  this 
view  Gratian  published  in  1139  his  famous 
Decretum,  or  the  Concordia  Uiscordantium 
Canonum.  This  book  is  merely  a  private 
work  which  attempts  to  remodel  the  form 
of  the  existing  law  as  it  was  being  admin- 
istered, and  to  assimilate  it  to  the  scientific 
method  of  the  civilians.  Then,  a  century 
later,  Pope  Gregory  IX  (1234)  promulgated 
to  the  University  of  Bologna  the  five  books 
of  Papal  decisions  which  had  been  arranged 
by  Raymond  of  Pennaforte.  This  is  the 
Deer  dale,  and  is  statute  law.  At  the  end 
of  the  same  century  the  last  of  the  truly 
mediaeval  Popes,  the  great  canonist  and 
fighter,  Boniface  V^III,  issued  a  further 
book  (also  by  a  Bull  to  the  University  of 
Bologna),  which,  as  adding  one  to  the  five 
books  already  known,  is  called  the  Sext. 
Other  collections  of  later  date  are  the 
Clementine    and    Johannine    Extravagants 


144    CHURCHES  IN  THE  MODERN  STATE 

and  the  Covimon  Eoctravagants.  These, 
however,  are  merely  collections,  and  are  not 
authoritative.  For  instance,  the  Bull  Unam 
Sanctam  has  never  been  officially  part  of  the 
law  of  the  Roman  Church.  It  is  doubtful 
whether  such  a  Pope  as  Leo  X  would  have 
been  willing  to  appeal  to  its  principles. 
I  must  apologise  for  stating  plain  and 
well-known  facts,  which  will  be  more  than 
familiar  to  many  here  ;  but  I  wish  to  point 
out  that,  alike  in  form  and  contact,  these 
various  collections  witness  to  a  cresceiido  of 
Papal  claims,  and  to  a  growing  hardening  of 
the  full  ultramontane  theory  of  the  Papacy. 
You  may  see,  if  you  will,  the  whole  doctrine 
latent  in  the  letters  of  Hildebrand,  and 
deny  that  there  is  any  true  development. 
Certainly  he  would  not  have  disowned  the 
claims  made  by  Boniface  VIII,  or,  later  on, 
by  John  XXII.  Yet  the  latter  positively 
claimed  far  more  than  Gregory  VII,  or  even 
Innocent  III,  had  ever  dreamed  of — e.g. 
to  have  the  administration  of  the  Empire 
during  a  vacancy,  while  the  theocratic 
and  prophetic  cast  of  Hildebrand's  mind 
caused  him  to  lay  stress  rather  on  the  Scrip- 
tural and  Divine  nature  of  his  claims  than 


ULTRAMONTANISM  145 

on  a  theory  which  is  at  bottom  juristic  and 
pohtical. 

We  have  seen  that  the  Papal  theory  was 
developed  on  the  lines  of  canonists  trained 
in  civil  law ;  for  a  long  while  every  canonist 
was  to  some  extent  a  civilian,  and  when 
John  of  Salisbury,  desiring  to  turn  Becket 
on  to  more  devotional  lines,  asks  him  what 
real  good  for  souls  the  study  of  the  canons 
or  the  laws  has  ever  done,  he  alludes 
to  the  fact  that  a  student  of  the  canons 
would  certainly  also  be  one  of  the  civil 
law  of  Rome.  It  is  also  true  that  the 
great  expression  of  anti-Papal  doctrine 
owed  much  to  theories  developed  by  writers 
who  were  primarily  secularists.  In  the 
great  fourteenth -century  conflict  between 
John  XXII  and  Louis  of  Bavaria,  not 
only  our  own  William  of  Ockham  in 
his  great  Dialogue  and  other  works,  but 
also  INIarsilius  of  Padua  in  the  JDefensor 
Pads,  developed  a  theory  of  representative 
government.  By  this  time,  moreover,  feu- 
dalism had  developed  into  the  mediasval 
system  of  estates,  and  the  very  definite 
notions  of  a  mixed  or  limited  monarchy, 
that    triumphed    in    this    country    in    the 

E 


146    CHURCHES  IN  THE  MODERN  STATE 

revolution     of     1399,     which     overthrew 
Richard  II. 

Towards  the  close  of  the  fourteenth  cen- 
tury the  Church  was  in  the  throes  of  the 
great  schism.  Until  this  was  closed  by  the 
Council  of  Constance  in  1414,  i.e.  for  a 
period  of  forty  years,  the  thoughts  of  all 
politically  minded  ecclesiastics  were  diverted 
from  the  question  of  the  two  powers  to  the 
consideration  of  the  constitution  of  the 
hierarchical  government  of  the  Church.  In 
their  necessity  they  were  driven  to  postu- 
late sovereignty  for  the  whole  of  the  faithful, 
as  against  the  Papal  monarchy  ;  to  claim  for 
the  councils  the  powers  of  supremacy  and 
deposition ;  and  to  transfer  that  consti- 
tutionalism, which  was  the  crown  of  medi- 
aeval life,  from  the  secular  to  the  spiritual 
authority.  In  other  words,  the  Conciliar 
movement,  more  especially  as  it  flowers  in 
the  Whiggism  of  Gerson  and  the  construc- 
tive federalism  of  Nicolas  of  Cues  in  the  De 
Concordantia  Catholica,  is  a  definite  assertion 
within  the  Church  of  the  needs  of  a  balanced 
constitution,  of  what  men  in  a  later  age 
were  to  call  a  mixed  or  limited  monarchy. 
Also,   it  was  an  assertion  of  the  national 


ULTRAMONTANISM  1 47 

spirit  against  mere  cosmopolitan  central- 
isation. To  the  Conciliar  movement  of  the 
fifteenth  century  and  to  its  great,  though 
not  recognised  leaders,  all  of  us  must  recur 
who  have  regard  at  once  to  the  historic 
claims  of  the  episcopate,  the  great  tradition 
of  the  whole  Catholic  Church,  and  at  the 
same  time  are  anxious  to  see  the  movement 
constitutional  and  federalistic,  with  due  re- 
gard paid  to  real  life  of  the  parts.  That 
movement,  however,  failed.  With  the 
triumph  of  the  Papacy  began  the  new 
absolutism.  We  must  not  be  misled,  as 
too  many  are,  by  English  history.  Be- 
ginning with  the  Renaissance,  gathering 
increased  speed  and  force  from  the  momen- 
tum of  the  Reform  movement,  absolutism 
developed  itself  with  amazing  strength 
throughout  the  whole  of  Western  Europe, 
until  it  was  checked  by  the  American 
Revolt  and  the  French  Revolution.  Eng- 
land and  Holland  are  the  two  exceptions 
to  prove  the  rule.  Indeed  English  history 
is  never  rightly  understood  by  those  who 
treat  constitutionalism  as  its  natural  and 
inevitable  issue.  To  the  Tudor  kings  and 
the    Stuart    statesmen    monarchy    always 


148    CHURCHES  IN  THE  MODERN  STATE 

seemed  the  natural  and  proper  development 
for  a  country  which  was  to  be  daiis  le  mouve- 
ment ;  freedom,  the  rights  of  Parliament, 
the  safeguards  of  the  Courts  were  regarded 
as  things  obsolete,  mediaeval,  inefficient, 
clogs  on  the  great  wheels  of  State  and 
invasions  of  its  arcana.  This  process,  or 
rather  this  state  of  mind,  which  is  always 
oblivious  of  individual  rights  as  being 
bourgeois  and  scorns  the  smaller  forms  of 
communal  existence  as  parochial,  in  the 
long  run  was  fatal  to  all  the  free  life  of 
corporations.  We  can  see  hints  of  it  in  the 
reigns  of  Charles  II  and  James  II.  Its 
complete  victory  in  the  German  principali- 
ties, and  the  destruction  of  the  old  guild  life 
and  all  the  little  sanctities  and  realities  of 
local  and  provincial  loyalty,  can  be  read  in 
the  second  volume  of  Dr.  Gierke's  great 
work. 

But  the  most  important  landmark  which 
heralded  all  the  rest  is  the  victory  of  Pope 
Eugenius  IV  over  the  Council  of  Basel, 
which,  after  sitting  nominally  for  eighteen 
years,  dissolved  itself  in  1449.  This  victory 
was  consolidated  by  Nicholas  V  and  Pius  II, 
who  in  his  Bull  Execrahilis  forbade  any- 


ULTRAMONTANISM  149 

one  to  appeal  to  a  general  council  on  pain 
of  excommunication,  on  the  ground  that  it 
was  a  body  which  might  never  come  into 
being.  The  absolutism  of  the  Papacy  was 
defended  by  writers  like  John  of  Torque- 
mada  (not  the  Inquisitor).  From  that  time 
all  the  rest  of  the  Papal  developments  were 
the  natural  issue.  The  federalism  and 
independent  life  of  the  Teuton  fellowship 
world  was  finally  vanquished.  When  it 
asserted  itself  again,  it  was  in  a  more  violent 
form,  and  that  element  was  expelled ;  and 
we  hasten  on  to  the  time  when  a  Pope 
could  say  in  all  seriousness  La  tradizione 
son  io.  Infallibility  is  a  necessary  corollary 
of  this  theory  of  jurisdiction.  If  the  whole 
government  of  a  Church  believed  to  exist 
by  Divine  right  is  vested  in  one  man,  not 
as  administrator  but  as  lord ;  then,  since 
the  Church  is  religious  life,  his  infallibility 
is  a  logical  corollary.  Practically,  however, 
in  this  regard,  of  far  greater  significance  is 
the  denial  of  all  living  reality  to  any  other 
person  or  body  within  the  Church.  The 
apotheosis  of  the  Pope  has  destroyed  Episco- 
pacy as  a  serious  force,  while  not  even  in 
theory  has  the  layman  any   right  beyond 


150    CHURCHES  IN  THE  MODERN  STATE 

obedience.  The  cardinal  error  of  the 
EncycHcal  Pascendi  is  its  treatment  of  the 
laity  as  purely  passive,  the  denial  to  them 
of  any  true  place  in  the  Church.  For  its 
condemnation  of  the  extremer  modernism 
much  is  to  be  said.  But  its  attitude  to 
the  laity  is  only  to  be  paralleled  by  the 
dictum  of  the  eighteenth-century  prelate, 
that  the  mass  of  the  people  have  nothing 
to  do  with  the  law  except  to  obey  it. 
Moreover,  this  dictum,  however  cynical,  is 
practically  true  in  all  the  modern  huge 
States,  except  where  there  is  a  strong  de- 
velopment of  local  and  corporate  societies, 
and  real  self-government.  The  mere  fact 
of  a  system  of  so-called  representatives 
will  not  secure  freedom.  We  have  in  fact 
reached  a  point  in  the  history  of  the  Church 
when,  so  far  as  his  own  communion  goes, 
the  Pope  could  say  L'Eglise  cest  moi  with 
far  more  complete  truth  than  Louis  XIV 
could  have  said  it  of  the  State.  ^ 

True,  all  this  concerns  jurisdiction  and 
sovereign  power  rather  than  purely  spiritual 
things,   and    in   the   matter   of    conferring 

^  Of  course  he  did  not  say  it.  We  owe  the  story 
to  Voltaire. 


ULTRAMONTANISM  151 

sacred  orders  the  Pope  has  no  more  power 
than  the  humblest  bishop,  any  more  than 
in  that  of  celebrating  the  sacrament  a  bishop 
differs  from  a  priest.  For  all  that,  it  is  not 
easy  to  understand  how  anyone  could  have 
thought  possible  another  decision,  than  that 
which  condemned  Anglican  Orders,  as 
coming  from  an  authority  imbued  with  the 
ultramontane  principles.  How  could  the 
intention  be  right,  if  it  were  an  intention 
to  ordain  men  as  ministers  of  a  body  the 
jurisdiction  of  which  the  Pope  does  not 
recognise  ?  For  in  ultramontane  theory 
the  Pope  is  omnipresent,  and  every  bishop, 
every  priest  even,  is  only  the  Pope's  delegate, 
just  as  every  poHce-court  magistrate  repre- 
sents "  His  IVIajesty  the  King,  his  crown 
and  dignity."  From  the  ultramontane 
standpoint,  to  suggest  that  a  parish  or 
province  or  even  a  national  Church  could 
exist  as  such  apart  from  the  fountain  of 
all  its  life,  would  be  like  saying  that  you 
would  have  a  legal  jurisdiction  in  any  royal 
country  apart  from  the  king  of  it. 

Even,  however,  if  the  matter  of  orders 
were  granted,  we  should  be  in  little  better 
case.     For   we   should  be  an  unorganised 


152    CHURCHES  IN  THE  MODERN  STATE 

mass,  and  our  bishops  would  have  no  juris- 
diction. This  must  be  so,  if  the  Pope  is 
the  source  of  legal  right  in  the  Church. 
The  question  about  Rome  is  at  the  bottom 
of  the  question  as  to  whether  the  Church 
is  a  State  in  the  antique  Greeco-Roman 
sense,  with  all  power  concentrated  at  the 
centre,  and  every  form  of  independent  life, 
corporate  or  individual,  denied — such  simul- 
acra of  it  as  exist  being  allowed  only  at  the 
permission,  tacit  or  express,  of  the  sovereign 
Pontiff.  The  sense  in  which  the  Pope  is 
the  Church  on  the  modern  ultramontane 
theory  is  probably  more,  not  less  profound, 
than  most  English  folk  imagine.  Of  course 
I  am  speaking  of  theory.  In  practice,  a 
doctrine  so  deeply  at  variance  with  the  facts 
of  life  is  less  dangerous  than  appears.  For 
human  nature  always  goes  on,  even  if  you 
deny  that  it  exists  (precisely  as  determinists 
in  theory  have  to  act  and  judge  as  though 
freedom  were  a  fact),  and  the  actual  Roman 
communion,  made  up  of  many  peoples, 
nations,  and  languages,  containing  innumer- 
able guilds  and  societies,  and  countless 
orders  and  fellowships,  and  embracing 
churches  of  the   most  diverse   intellectual 


ULTRAMONTANISM  153 

and  emotional  climate  stretching  in  un- 
broken continuity  through  all  the  centuries 
— that  body  has  within  her  exhaustless 
springs  of  beauty,  and  flowers  of  a  rich 
and  overflowing  piety ;  she  exhales  from 
her  million  churches  a  perfume  as  of  the 
prayers  of  the  saints  throughout  the  ages, 
and  still  contains  such  springs  of  love  and 
sacrifice,  that  no  stone  ought  to  be  cast 
at  her.  Also,  to  a  large  extent,  she 
remains  the  Church  of  the  poor.  Ultra- 
montanism  as  a  juristic  and  social  doctrine 
is  what  we  combat — not  the  actual  Catholic 
life  of  Spanish  or  Irish  or  Bavarian  Christians. 
From  all  of  them  we  have  more  to  learn 
than  we  like  to  think.  Yet  it  remains  the 
case  that  the  Roman  theory  is  false,  and 
for  precisely  the  same  reason  that  the 
doctrine  of  the  unrestrained  omnipotence 
of  the  State  is  false.  It  is  not  congruous 
with  the  facts  of  life.  It  attempts  to  ignore 
the  fact  that  the  force  of  State  action  is  a 
synthesis  of  living  wills,  no  mere  logical 
theory  deduced  from  the  notion  of  unity. 
However,  all  this  is  only  what  we  have 
been  already  discussing.  AVhat  is  worth 
adding  is  this.     A  doctrine  which  denies 


154    CHURCHES  IN  THE  MODERN  STATE 

reality  and  all  self-developing  life  to  the 
parts  of  the  body  politic  is  in  religion  yet 
more  disastrous  than  in  civil  society,  because 
in  the  long  run  it  must  destroy  the  springs 
of  spiritual  life  in  the  individual  conscience. 
Wherever  blind  obedience  is  preached,  there 
is  danger  of  moral  corruption.  Englishmen, 
however,  would  do  well  to  remember  that 
the  present  fashion  is  to  preach  this  doctrine 
of  blind  obedience,  not  to  an  infallible 
Church  or  a  gilded  autocrat,  but  to  a  non- 
representative  Parliament  and  a  jerryman- 
dering administration.  Whether,  however, 
the  doctrine  of  omnipotence  be  proclaimed 
in  Church  or  State,  whether  it  take  the 
form  of  monarchy  by  Divine  right  or  the 
sovereignty  of  the  people,  always  and  every- 
where this  doctrine  is  false ;  for  whether  or 
no  men  can  frame  a  logical  theory  to 
express  the  fact,  the  great  fact  at  the  root 
of  all  human  society  is  that  man  is  a  person, 
a  spiritual  being  ;  and  that  no  power — not 
even  a  religious  society — is  absolute,  but 
in  the  last  resort  his  allegiance  to  his  own 
conscience  is  final.  In  regard,  moreover,  to 
the  Church,  we  cannot  often  enough  repeat 
that  the  Church  of  the  future  must  be  a 


ULTRAMONTANISM  155 

laymen's  Church  (although  it  still  must  have 
its  priesthood),  that  is,  the  great  democracy 
of  God's  servants  and  Christ's  brethren,  and 
na  exclusive  or  illimitable  power  into  which 
they  may  not  look. 

Further,  I  think  we  have  good  grounds 
for  attributing  to  the  ultramontane  Papacy 
the  character  of  a  transient  historical  phe- 
nomenon, resulting  from  the  special  circum- 
stances of  the  development  of  Western 
Europe.  On  a  view  of  history  it  is  seen 
that  the  Papacy  is  a  growth  of  the  human 
conditions  of  the  Roman  Empire  and  the 
principles  inherent  in  the  Corpus  Juris 
Civilis.  It  is  really  a  very  local,  in  a  sense 
provincial,  institution  as  compared  with 
Christendom  as  a  whole.  Doubtless  that 
is  a  view  of  Christianity,  as  a  fact  in  uni- 
versal history,  taken  by  many  nowadays ; 
but  while  it  is  not  hard  to  show  grounds 
for  holding  that  the  Catholic  Church  is 
the  central  thing  in  the  spiritual  history  of 
mankind,  it  is  not  so  easy  with  the  actual 
fact  before  us  of  the  Eastern  Churches  and 
other  communions,  to  argue  that  the  same 
can  be  true  of  the  ultra-legalist  doctrine 
of  the  omnipotent  autocracy  concentrated 


156    CHURCHES  IN  THE  MODERN  STATE 

at  Rome.  What  is  certain  is  that  in  this 
view  the  condemnation  of  the  EngHsh 
Church  as  a  corporate  society,  a  true  part 
of  the  whole,  is  inevitable,  and  it  is  not 
arbitrary.  It  proceeds  directly  from  the 
principle  of  denying  all  life  to  the  parts 
and  provinces  of  the  Church,  except  that 
which  is  derived  from  the  centre — and 
assuming  Rome  to  be  the  centre. 

In  order  to  justify  the  English  Church 
now  and  since  the  Reformation,  you  have 
to  estabhsh  two  things:  (1)  that  the  parts, 
in  this  case  a  nation,  or  if  you  will  the  two 
provinces,  have  such  inherent  powers  of  life 
and  self-development,  that  the  breach  with 
the  Papacy  did  not  affect  them  vitally ;  (2) 
that  what  they  did  or  suffered  was  not  of 
such  a  nature  as  to  cut  these  parts  off  from 
that  stream  of  universal  communal  life  we 
call  the  Catholic  Church.  For  that  purpose 
it  is  needful  to  reassert  the  principles  set 
out  in  the  fifteenth  century  at  Constance 
and  at  Basel. 

The  problem  is  concerned  with  the  nature 
of  authority  in  the  Church  and  with  the 
transmission  of  that  communal  life.  In 
controversy  the  form  which  this  argument 


ULTRAMONTANISM  157 

has  taken  has  been  largely  that  of  a  dis- 
cussion on  the  true  interpretation  of  the 
Petrine  texts.  With  an  iteration  almost 
wearisome  the  Conciliar  party  assert  that 
the  commission  to  St.  Peter  was  a  com- 
mission to  the  whole  Church ;  that  the 
Papal  power  is  only  representative  ;  that  he 
is  not  dominus  but  minister ;  that  he  may 
be  restrained,  and  even  deposed,  as  he  was. 
I  think  some  went  so  far  as  to  say  that  the 
Papacy  might  be  abolished,  if  the  Church 
saw  fit,  for  orhis  major  urhe.  None  of  the 
Concihar  writers  could  dispute  that  the 
actual  administrative  power  rested  in  the 
Pope,  although  many  wished  to  curtail  it 
and  to  devise  a  definite  system  of  consti- 
tutional government.  Still,  the  Pope's 
authority  is  merely  that  of  the  mouth- 
piece ;  the  real  authority  is  that  which 
exists  diffusively  in  the  whole  communitas 
jidelium. 

Similar  is  the  contention  of  Bossuet  in 
his  Defensio  Cleri  Gallicani  at  the  close  of 
the  seventeenth  century.  Everywhere  the 
appeal  is  to  universal  consent.  Even  from 
the  canonist  and  ultramontane  side  many 
would   be  found  to  argue  that  law  to  be 


158    CHURCHES  IN  THE  MODERN  STATE 

valid  needs  not  only  Papal  promulgation 
but  also  general  acceptance.  Thus  a  custom 
of  disregarding  law,  if  well  established, 
could  of  itself  abrogate  it.  The  true  prob- 
lem then  is  that  concerning  the  nature  of 
authority  in  a  society. 

Now  authority  may  sometimes  come 
from  above ;  and  be  purely  external,  like 
that  of  a  master  over  his  slave,  or  a  general 
over  his  army.  But,  as  a  matter  of  fact,  in 
any  society  authority  arises  in  a  more 
natural  manner  than  this,  and  is  more 
subtle.  It  is  more  often  instinctive  and 
inarticulate,  what  we  call  tone  or  atmo- 
sphere, than  categorical  and  legislative.  It 
arises  from  that  total  complex  of  influences, 
personal,  historical,  spiritual,  moral,  aesthetic, 
which  are  greater  than  the  individual,  which 
mould  men's  minds  and  wills  even  when 
they  are  unaware  of  it — to  which  the  most 
rebelHous  anarchist  pays  toll,  even  by  talk- 
ing in  the  same  language.  Take  an  Eng- 
lish public  school;  there  assuredly  there  is 
authority.  But  you  will  not  tell  me  that 
it  is  merely  the  will  of  the  headmaster,  even 
though  technically  he,  as  "  Leviathan," 
might    forbid     every    other     form     of    it. 


ULTRAMONTANISM  159 

Neither  again  is  it  in  the  assistant-masters, 
nor  in  the  prefects ;  nor  in  all  these  to- 
gether. It  is  something  far  deeper  than 
the  will  of  any  official  or  of  a  corporate 
body  of  officials ;  and  it  is  potent  over 
them,  no  less  than  over  their  subjects.  It 
is  surely  the  general  expression  of  the 
communal  life  in  the  school,  which  goes 
on  from  generation  to  generation,  which 
is  being  silently  moulded  every  day  and 
year,  which  in  the  most  conservative  of 
societies  is  always  slightly  changing,  which 
includes  in  its  sphere  all  the  written  rules 
and  stated  commands,  all  the  personal 
qualities  of  past  and  present  officials ;  and 
not  only  theirs,  but  that  of  every  single 
member  of  the  society.  The  new  boy,  to 
whom  it  seems  at  first  purely  external,  is 
yet  always  a  part  of  this  very  authority 
which  he  obeys,  and  will  have  his  own 
effect,  slight  or  weighty,  on  the  total  result. 
Probably  it  is  best  expressed  by  the  term 
of  Rousseau,  The  General  Will;  and  like 
Rousseau  we  must  insist  that  every  indi- 
vidual has  and  must  have  by  the  nature 
of  things  his  share  in  forming  that  General 
Will,  even  though  at  any  moment  it  may 


160    CHURCHES  IN  THE  MODERN  STATE 

go  entirely  against  his  own  judgment,  ex- 
cept the  one  desire  to  continue  a  member 
of  the  society.  Authority  is  in  fact  the 
expression  of  the  social  nature  of  man,  and 
the  true  character  of  personality.  Its  only 
true  antithesis  is  a  pure  individualism  which 
springs  in  thought  from  the  barest  rational- 
ism, and  in  politics  leads  to  anarchy.  In  so 
far  as  it  permits  a  political  or  ecclesiastical 
society,  such  individualism  can  do  so  only 
on  the  grounds  of  expediency,  and  the  most 
legalist  form  of  the  doctrine  of  a  social 
contract. 

The  difficulties  in  this  latter  have  been 
well  summed  up  by  Mr.  Arthur  Balfour  in 
what  is  perhaps  the  most  valuable  chapter 
in  TJie  Foundations  of  Belief.  After  set- 
ting out  the  pure  individualist  and  rationalist 
theory,  he  goes  on :  "  Sentiments  like  these 
are  among  the  commonplaces  of  political 
and  social  philosophy ;  yet,  looked  at  scien- 
tifically, they  seem  to  me  to  be  not  merely 
erroneous,  but  absurd.  Suppose  for  a 
moment  a  community  of  which  each  member 
should  deliberately  set  himself  to  the  task  of 
throwing  off  so  far  as  possible  all  prejudices 
due  to  education ;  where  each  should  con- 


ULTRAMONTANISM  161 

sider  it  his  duty  critically  to  examine  the 
grounds  whereon  rest  every  positive  enact- 
ment and  every  moral  precept  which  he  has 
been  accustomed  to  obey ;  to  dissect  all  the 
great  loyalties  which  make  social  life  possible, 
and  all  the  minor  conventions  which  help 
to  make  it  easy  ;  and  to  weigh  out  with  scru- 
pulous precision  the  exact  degree  of  assent 
which  in  each  particular  case  the  results  of 
this  process  might  seem  to  justify.  To  say 
that  such  a  community,  if  it  acted  upon  the 
opinions  thus  arrived  at,  would  stand  but  a 
poor  chance  in  the  struggle  for  existence  is 
to  say  far  too  little.  It  could  never  even 
begin  to  be ;  and  if  by  a  miracle  it  was 
created,  it  would  without  doubt  immedi- 
ately resolve  itself  into  its  constituent 
elements." 

It  is  nearly  twenty  years  since  these 
words  were  written,  and  the  movement  of 
which  M.  Bergson  is  the  most  eminent  repre- 
sentative is  giving  to  Mr.  Balfour's  whole 
view  a  wider  support  than  seemed  at  first 
likely.  Yet,  on  the  other  side,  the  demand 
for  a  universal  criticism,  beginning  with  the 
cradle,  is  louder  than  ever ;  and  a  Cam- 
bridge Regius  Professor  of  History  has  gone 


162    CHURCHES  IN  THE  MODERN  STATE 

so  far  as  to  say  that  the  great  command  of 
the  future  is  yet  to  be,  "  Children  distrust 
your  parents,"  ^ 

But,  though  authority  is  thus  necessary, 
it  is  not  merely  something  external  or  super- 
imposed, but  is  part  of  the  personality  of  the 
person  who  submits  to  it.  This  is  so  even 
with  religious  authority.  In  its  barest  form, 
the  discipleship  of  Christ,  there  must  ever 
be  present  an  element  of  authority.  He  is 
Master,  and  that  must  mean  that  the 
disciple,  having  on  general  grounds  sub- 
mitted to  His  Lordship,  must  be  prepared 
to  follow  Him  where  he  knows  not,  and  to 
act  in  advance  of  what  his  own  individual 
reason  can  tell  him  at  the  moment.  Yet, 
at  the  same  time,  it  is  partly  the  disciple's 
choice  that  makes  him  one  ;  the  relation  is 
mutual,  and  so  it  must  be  if  the  disciple  is 
to  interpret  the  commands  of  his  leader.  So 
it  always  is  with  the  most  elaborate  system. 
The  creed  of  Pope  Pius  V  may  unite  all 
members  of  the  Roman  communion,  but 
what  each  one  means  by  it  he  must  decide 
for  himself;  how  it  bears  on  his  total  self; 

^  J.   B,    Bury,   History  of  Freedom  of  Thought,   last 
paragraph. 


ULTRAMONTANISM  163 

what  content  he  gives  to  many  of  its 
notions;  what  grounds  he  has  for  adhering 
to  this  or  that  individual  statement.  Even 
if  he  takes  the  whole  merely  on  the  autho- 
rity of  the  Church,  he  does  so  as  being 
himself  one  of  its  members,  and  his  own  life 
and  thought  will  have  some  bearing,  how- 
ever slight,  in  determining  for  others  what 
the  creed  implies  and  the  grounds  of  alle- 
giance. One  thing,  however,  is  clear  from 
what  we  have  said,  that  creeds  and  formu- 
laries are  not  to  be  considered  in  vacuo — 
debated  as  lists  of  propositions,  and  judged 
externally.  They  are  the  intellectual  ex- 
pression of  the  total  life  of  the  Church,  and 
have  their  meaning  in  reference  to  the  con- 
troversies which  evoked  them.  At  moments 
when  the  root  fact,  the  supernatural  char- 
acter of  the  Christian  life,  was  threatened, 
there  flashed  out  from  the  communal  con- 
sciousness, the  true  authority,  those  expres- 
sions of  faith  designed  to  guard,  and,  as  a 
fact,  effectively  guarding,  that  supernatural 
character. 

The  Bishops  at  Nic^ea  spoke  as  witnesses 
in  the  crisis  of  Arianism  :  they  set  forth  the 
essence  of  that  Christian  life  which  they  all 


164    CHURCHES  IN  THE  MODERN  STATE 

shared ;  not  what  it  should  be,  but  what  it 
was.  But  this  was  not  all.  In  the  diffusive 
consent  of  the  whole  Christian  body,  no  less 
than  in  the  organic  expression  of  the 
Council,  lies  the  true  authority  of  the  creed, 
and  of  the  whole  law  or  customs,  of  the 
Church.  We  must  not  separate  the  two  in 
thinking  of  the  final  result.  This  point  and 
the  whole  topic  of  the  communal  conscious- 
ness of  the  Church  is  admirably  set  out  in 
the  famous  but  ill-starred  essay  by  New- 
man, "  On  Consulting  the  Faithful,"  pub- 
lished in  the  Rambler  in  1858.  Perhaps  I 
may  cite  from  him  two  passages.  "  First, 
I  will  set  down  the  various  ways  in  which 
theologians  put  before  us  the  bearing  of  the 
consent  of  the  faithful  upon  the  manifesta- 
tion of  the  tradition  of  the  Church.  Its 
concensus  is  to  be  regarded  :  ( 1 )  As  a  testi- 
mony to  the  apostolical  dogma  ;  (2)  as  a  sort 
of  instinct,  or  (pp6v>]ixa,  deep  in  the  bosom  of 
the  mystical  body  of  Christ ;  (3)  as  a  direc- 
tion of  the  Holy  Ghost ;  (4)  as  an  answer 
to  its  prayer ;  (5)  as  a  jealousy  of  error 
which  it  at  once  feels  as  a  scandal."  "  I 
think  certainly  that  the  Ecclesia  docens  is 
more  happy  when  she  has  such  enthusiastic 


ULTRAMONTANISM  165 

partisans  about  her,  as  are  here  represented, 
than  when  she  cuts  off  the  faithful  from 
the  study  of  her  divine  doctrines  and  the 
sympathy  of  her  divine  contemplations,  and 
requires  from  them  b,  fides  iviplicita  in  her 
word,  which  in  the  educated  classes  will 
terminate  in  indifference  and  in  the  poorer 
in  superstition."  I  take  it  that  now,  as 
compared  with  the  years  1872  or  1873,  a 
Roman  controversialist  would  be  justified 
in  appealing  to  this  same  principle,  as  giving 
to  the  Vatican  definitions  an  authority  wliich 
they  had  not  when  originally  proclaimed. 

However  that  may  be,  there  can  be  no 
doubt  that  on  the  ultramontane  theory  all 
authority  is  gathered  at  the  centre  and  not 
merely  administered  there ;  and  that  the 
Church  lives  by  virtue  of  what  can  be  de- 
rived from  the  Pope.  Now  the  theory  on 
which  the  English  Church  (and  ultimately 
the  same  is  true  of  the  Gallican  view), 
bases  its  doctrine  is  the  direct  opposite  of 
this.  The  authority  of  the  Church  is  not 
an  abstract  doctrine  deduced  from  the 
notion  of  unity ;  but  it  is  a  synthesis  of 
all  the  living  parts  of  the  Church.  True,  a 
connection   exists    between   them,   or    one 


166    CHURCHES  IN  THE  MODERN  STATE 

could  not  talk  of  the  Catholic  Church ; 
but  just  as  in  St.  Paul's  time  the  Catholic 
Church  was  present  equally  in  the  Churches 
of  Ephesus,  or  Corinth,  or  Rome,  or  An- 
tioch,  as  it  was  in  Jerusalem  at  the  centre ; 
so  now  on  our  view  the  life  of  the  Church 
is  real  in  every  nation,  in  every  province, 
in  every  diocese,  and  does  not  exist  by 
grace  of  the  Pope.  Any  universal  consti- 
tution to  which  we  might  approach,  would 
be  ultimately  of  the  federalist  type ;  and  so 
long  as  the  sacraments  are  maintained,  this 
life  is  not  destroyed  either  by  the  fact  of 
schism,  very  rarely  a  unilateral  offence,  or  by 
the  curtailment  of  rites  in  themselves  laud- 
able. We  can  assert  the  Catholicity  of  the 
Church  of  England — univei^sitas  qucedam, 
as  Lyndwood  calls  her — without  denying 
that  in  many  ways  her  life  has  been  im- 
poverished, more  especially  in  those  which 
have  regard  to  the  Communion  of  Saints. 
Too  little  indeed  have  men  drunk  at  the 
deep  wells  of  Catholic  devotion  ;  too  callous 
are  many  of  them  still  to  that  clothing 
"  all  glorious  within,"  which  adorns  as  with 
wrought  gold  "the  King's  daughter,"  the 
bride  of  Christ.     Too  sadly  have  they  neg- 


ULTRAMONTANISM  167 

lected  the  rich  treasures  of  the  great 
human-divine  Ufe  we  call  the  Church,  and 
despised  its  long  roll  of  heroes,  and  turned 
in  scorn  from  its  diadem  of  eternal  thorns 
purpled  with  the  blood,  not  only  of  her  Lord, 
but  of  all  the  martyrs  who  have  died  in  His 
name.  Too  slight  has  been  their  use  of  the 
deep  and  touching  pathos,  and  that  voice 
"  as  the  sound  of  many  waters "  which 
sounds  in  all  her  liturgy  and  praises  in  self- 
less giving  the  "  firstborn  of  all  creation," 
Him  that  was  despised  and  rejected  of  men. 
We  are  like  the  heirs  of  a  great  house 
and  park,  who  have  lived  only  in  the  kitchen 
and  never  bathed  in  the  lake.  All  this 
may  be  true,  and  it  is  right  that  we  should 
regard  as  coming  with  authority,  i.e.  as 
speaking  with  a  presu7nption  in  its  favour, 
the  life  of  devotion,  or  the  round  of  fast 
and  festival,  or  the  habits  and  gestures  of 
the  ministers,  or  even  the  tones  and  hymns 
which  in  the  vast  experience  of  ages  have 
filtered  into  the  Church,  making  her  the 
true  home  of  the  soul. 

And  yet  we  must  not  forget  the  other 
side.  If  that  view  of  the  nature  of  a 
society  we  have  been  setting  forth  in  these 


168    CHURCHES  IN  THE  MODERN  STATE 

lectures  be  well  founded,  and  if  the  claim 
of  the  English  Church  to  be  a  true  part 
of  the  great  universal  life  be  sound,  we  are 
not  to  ignore  or  treat  as  of  no  authority 
some  characteristic  qualities  of  that  part. 
Two  dangers  there  seem  to  me  prevalent 
just  now.  The  one  is  that  of  many  who, 
while  repudiating  the  positive  claims  of  the 
Papacy,  hold  yet  at  bottom  to  the  same 
theory  of  the  Christian  society ;  i.e.  they 
would  concentrate  its  reality  in  an  official 
caste  and  leave  the  society  in  a  position 
purely  passive.  That  is  by  no  means  con- 
fined to  soi-disa7it  Catholics,  or  even  to 
High  Churchmen,  and  it  has  been  partly 
increased  by  the  pernicious  fact  of  the 
parson's  freehold.  Secondly,  there  is  the 
danger,  perhaps  even  more  widely  prevalent, 
to  suppose  that  anything  characteristically 
English  is  certainly  wrong ;  and  to  claim 
universal  or  binding  authority  for  some 
practice  or  doctrine,  which  so  far  from  being 
universal  is  confined  to  one  portion  of  the 
Western  Church.  Ignorant  for  the  most 
part  of  history,  and  especially  of  the  seven- 
teenth century,  and  oblivious  of  the  future, 
such  persons  would   tie  men  down  to  an 


ULTRAMONTANISM  169 

absolute  and  literal  following  of  what  under 
ultramontane  pressure  has  been  forced  upon 
the  Churches  of  Italy,  and  France,  and 
Spain,  and  would  by  implication  deny  the 
very  claim  on  which  our  own  corporate 
existence  is  based.  The  notion  that  it  is 
wrong  not  to  do  this  or  that  because  it  is 
the  custom  of  Western  Christendom  can 
be  justified  only  if  the  Church  of  England 
is  no  part  of  it,  and  leads  by  logical  steps 
direct  to  Ultramontanism.  That  the  Church 
of  England  has  much  to  learn  I  would  be 
the  last  to  deny:  but  is  that  any  ground 
for  supposing  that  she  has  nothing  to  teach? 
Can  anyone  who  seriously  considers  the  facts 
believe  that  to  be  true  of  the  communion  in 
which,  to  mention  no  more.  Hooker  wrote, 
and  Andrews  prayed,  and  Butler  argued, 
and  Liddon  preached  ?  I  say  that  it  is 
revolting  to  talk  hke  this,  and  it  would  be 
absurd  were  it  not  so  dangerous.  Yet  many 
do  it.  At  no  time  was  it  more  deeply 
needed  to  preserve  the  self-identity  and  the 
being  not  only  of  the  Catholic  Church  but 
of  "  that  pure  and  reformed  part  of  it  estab- 
lished in  this  country."  We  shall  never  do 
this  if  we  think  of  her  as  a  pis  oiler. 


170    CHURCHES  IN  THE  MODERN  STATE 

Much  that  has  been  said  in  these  lectures 
will  seem  commonplace,  and  some  of  it 
obvious.  Yet  it  is  plain  that  the  principles 
here  set  out  are  not  recognised,  and  where 
they  are  recognised  are  often  disliked.  Their 
purpose  will  be  achieved  if  I  have  shown 
these  facts :  First,  the  problem  of  the  re- 
lations of  Church  and  State  cannot  be  con- 
sidered in  isolation.  It  raises  topics  which 
go  down  to  the  root  of  all  political  philo- 
sophy, and  forces  us  to  face  the  whole 
problem  of  the  true  nature  of  civil  society 
and  the  meaning  of  personality.  If  the 
view  which  is  here  suggested  be  the  true 
one,  we  must  get  rid  of  our  enslavement 
to  doctrines  never  altogether  true,  but  far 
less  true  to  facts  now  than  has  been  the 
case  at  some  periods,  as,  e.g.,  in  a  City-State. 
We  must  seek  to  make  our  theories  grow 
out  of  and  co-ordinate  with  the  life  of 
men  in  society  as  it  is  lived.  We  must 
distrust  abstract  doctrines  of  sovereignty, 
with  which  the  facts  can  be  made  to  square 
only  by  elaborate  sophistry.  Above  all,  we 
must  be  willing  to  put  liberty  above  other 
ends  as  a  political  goal,  and  to  learn  that 
true  liberty  will  be  found  by  allowing  full 


ULTRAMONTANISM  171 

play  to  the  uncounted  forms  of  the  associa- 
tive instinct.  We  are  fighting  not  only  our 
own  battle  but  that  of  the  liberty  of  all 
smaller  societies  against  the  tendency  to 
mere  concentration,  which  in  one  way  is 
a  marked  feature  of  our  time.  IVIuch  has 
to  be  learnt  both  by  ourselves  and  others 
from  the  mediaeval  guild  system.  Further, 
we  must  learn  to  allow  to  others  that  liberty 
we  claim  for  ourselves  as  a  corporate 
society,  and  fairly  face  the  fact  which  I 
have  called  "  the  religious  heterogeneity  of 
the  modern  State."  Lastly,  we  shall  see 
that  the  only  basis  on  which  a  true  defence 
of  the  English  Church  against  Rome  can 
be  founded  is  precisely  the  same  as  that 
which  we  have  been  expounding.  For  Rome, 
as  a  Church  polity,  simply  embodies  those 
seeming  notions  of  omnipotent  sovereignty 
which  we  saw  had  passed  over  from  the 
antique  State  to  the  modern  world.  And 
thus  we  are  forced  to  consider  something  of 
the  nature  of  religious  authority  in  general, 
and  of  the  life  of  the  part  in  the  whole. 
Perhaps  these  are  enough  topics  to  have 
suggested  in  four  lectures. 


APPENDIX 


APPENDIX  I 

RESPUBLICA    CHRISTIANA 

I  THINK  it  was  Lord  Halsbiiry,  in  the 
Scotch  Church  case,  who  stopped  one  of 
the  advocates  in  his  use  of  the  word  Church, 
saying  that  they  as  a  Court  had  nothing  to 
do  with  that,  and  that  they  could  only  con- 
sider the  question  as  one  concerning  a  trust. 
In  other  words,  with  a  religious  society  as 
such  they  eould  not  deal,  but  only  with  a 
trust  or  a  registered  company.  This  is  only 
one  instance  of  a  fact  exhibited  in  the  whole 
of  that  case :  namely,  the  refusal  of  the  legal 
mind  of  our  day  to  consider  even  the  possi- 
bility of  societies  possessing  an  inherent, 
self-developing  life  apart  from  such  definite 
powers  as  the  State,  or  the  individuals 
founding  the  body  under  State  authority, 
have  conferred  upon  them  explicitly.  In  this 
view,  apart  from  the  State,  the  real  society 
— and  from  individuals  the  living  members 


176    CHURCHES  IN  THE  MODERN  STATE 

of  the  State  —  there  are  no  active  social 
unities  ;  all  other  apparent  communal  unities 
are  directly  or  indirectly  delegations,  either 
of  State  powers  or  of  individuals.  To  such 
a  view  the  notion  is  abhorrent  of  a  vast 
hierarchy  of  interrelated  societies,  each  alive, 
each  personal,  owing  loyalty  to  the  State, 
and  by  it  checked  or  assisted  in  their  action 
no  less  than  are  private  individuals,  but  no 
more  deriving  their  existence  from  Govern- 
ment concession  than  does  the  individual 
or  the  family.  In  other  words,  these  phrases 
of  Lord  Halsbury  are  but  the  natural  expres- 
sion of  the  concession  theory  of  corporate 
life  which  sees  it  as  a  fictitious  personality, 
created  by  the  State  for  its  own  purposes, 
and  consequently  without  any  natural  or 
inherent  powers  of  its  own.  This  theory 
is  not  so  universally  accepted  as  was  once 
the  case,  but  Professor  Geldart's  inaugural 
lecture  on  "  Legal  Personality"  shows  how 
great  are  the  obstacles  still  to  be  encountered 
by  that  theory  of  realism  which  is  for  most 
of  us  associated  with  the  name  of  Gierke,^ 

1  Gierke,  Das  Deutsche  Genossenschaftsrecht,  especi- 
ally vols.  ii.  and  iii.,  is  the  prime  authority  for  the 
discussion  of  this  topic  in  reference  alike  to  historical 


APPENDIX  I  177 

and  was  popularised  by  Maitland.  The 
latter,  moreover,  has  shown  how  that  very 
English  institution  of  the  ti'ust  has  preserved 
us  from  the  worse  perils  of  the  rigid  doc- 
trinaire conception  of  the  civilian.  For 
under  the  name  of  a  trust  many  of  the 
qualities  of  true  personality  have  been  able 
to  develop  unmolested.  But  this  has  not 
been  all  to  the  good.  It  has  probably  de- 
layed the  victory  of  the  true  conception, 
by  enabling  us  to  "  muddle  through  "  with 
the  false  one.  Moreover,  the  trust  is  and 
assimilates  itself  always  rather  to  the  Anstalt 

development  in  the  ancient  mediaeval  world  and  in  the 
post-Renaissance  State,  and  to  theoretical  truth.  In 
another  work,  Die  Genossenschafts  Theorie,  Dr.  Gierke 
shows,  by  an  elaborate  analysis  of  recent  decisions  both 
in  State  and  federal  courts  in  Germany,  how  entirely 
impossible  it  is  to  work  with  the  rigid  civilian  theory ; 
and  how  the  courts  and  judges,  while  often  paying  lip- 
service  to  "  Romanist "  notions,  are  driven  in  spite  of 
themselves  to  make  use  of  the  more  vital  Teutonic 
notions.  The  whole  matter  is  intimately  connected 
with  that  conflict  described  by  Beseler  in  Das  Volksrecht 
und  das  Juristenrecht.  There  is  a  short  lecture  of  Gierke, 
Das  Wesen  des  Menschlichen  Verhandes,  which  is  also 
very  illuminative.  Professor  Jethro  Brown  in  an  Appen- 
dix to  the  Austinian  Theory  of  Law  and  Govemviettt  is 
worthy  of  study.  There  is  a  somewhat  meagre  account 
of  the  various  theories  in  Carr,  The  Law  of  Corporations. 

M 


178    CHURCHES  IN  THE  MODERN  STATE 

or  the  Stif'tung  than  to  the  living  communal 
society,  the  true  corporation,  with  its  basis 
in  the  Genossenschaft ;  and  consequently, 
as  was  proved  in  this  Scotch  case,  the  neces- 
sary independence  of  a  self- developing  per- 
sonality is  denied  to  it,  and  its  acts  are  treated 
as  invalid  on  this  very  ground — that  it  is  only 
a  trust  tied  rigidly  to  its  establishing  terms, 
and  not  a  true  society  with  a  living  will  and 
power  of  change. 

However,  it  is  not  the  truth  or  falsehood 
of  the  concession  theory,  or  its  realist  adver- 
sary, that  I  am  to  discuss  here,  but  rather 
its  origin,  I  want  to  try  for  a  little  to  see 
what  lies  behind  it.  The  doctrine  of  which 
we  speak  could  hardly  be  of  modern  origin. 
In  the  infinitely  complex  life  of  modern 
civilisation  and  its  religious  heterogeneity 
we  observe,  as  a  matter  of  actual  fact,  the 
phenomenon  of  vast  numbers  of  societies 
all  acting  as  though  they  were  persons. 
They  do  manage  to  do  all  or  most  of  the 
things  which  they  would  do  even  if  the 
concession  theory  were  not  dominant.  In- 
deed, it  is  only  by  a  series  of  very  trans- 
parent fictions  that  their  activities  are 
brought  under  this  rubric.     To  all  intents 


APPENDIX  I  179 

and  purposes  they  act,  not  as  fictitious  but 
as  real  legal  personalities.     Of  course  the 
metaphysical  question,  what  this  personality 
really  means,  lies  outside  our  limits,  just  as 
the   question  whether  the  will   is   free   or 
determined   has   nothing    to    do   with   the 
State   in   its   treatment  of  the  individual. 
No  one  is  debarred  from  believing  deter- 
minism because  the  State  treats  its  citizens 
as  free  agents.     Further  than  this  the  Taff 
Vale  decision  is  significant,  for  it  tended  to 
show  that  corporate  life  was  a  thing  natural 
and  arising  of  itself  in  bodies  of  men  asso- 
ciated for  permanent  objects,  and  that  it 
could  not  be  destroyed  by  the  process  of 
ignoring   it;    in  other  words,  that  Trades 
Unions  were  personalities,  in  spite  of  their 
own  wishes,  and  in   spite   of  the   Act   of 
Parliament    which    had    allowed   to    them 
much  of  the  liberty  of  corporate  personality 
while  preserving  them  from  its  liabilities. 
That    the    House    of    Lords   upheld    Mr. 
Justice  Farwell  in  this  case,  and  at  the  cost 
of  much  odium,  is  also  evidence  that  the 
concession  theory  is  not  really  congruous 
with  the  facts  of  life,  and  that  it  is  not 
of  modern  origin,  but  is  in  some  way  an 


180    CHURCHES  IN  THE  MODERN  STATE 

inheritance  from  the  past.  We  see,  in  fact, 
the  horizons  of  the  legal  mind  changing, 
and  we  gather  that  this  mentality  must 
relate  to  some  time  when,  to  speak  of  the 
two  great  bodies  whose  clash  has  been 
unending,  State  and  Church  were  so  bound 
together  in  unity  that  they  could  not  be 
conceived,  either  of  them,  as  a  separate 
society  with  a  separate  life,  but  each 
appeared  as  different  aspects  or  function- 
ings  of  one  and  the  same  body.  Such  a 
time  is  clearly  remote  from  the  world 
we  live  in. 

Let  us  now  take  an  instance  from  a 
Continental  country,  France.  In  France 
the  concession  theory  has  long  reigned 
practically  unchecked,  alike  as  a  legal  theory 
and  even  as  a  political  maxim.  It  burst 
into  renewed  activity  only  the  other  day  in 
the  Associations  "Loi."  Rousseau  and  his 
followers  have  always  been  opposed  to 
allowing  any  inherent  rights  to  bodies  other 
than  the  sovereign  people.  There  were,  at 
least  in  earlier  theory,  rights  of  man  and 
there  were  rights  of  the  State.  There  were 
no  rights  of  any  other  society.  But  for 
their    obsession    with    this    doctrine,    the 


APPENDIX  I  181 

statesmen  of  the  Revolution  could  never 
even  have  dreamt  of  such  a  project  as  the 
Constitution  Civile  of  the  clergy.  Now, 
however,  men  have  gone  even  further,  and 
deny  all  rights  at  all  except  those  of  the 
Republic  one  and  indivisible.  M.  Emile 
Combes  put  it,  writing  in  an  English 
review,  "  There  are  no  rights  but  the  rights 
of  the  State ;  there  is  no  authority  but  the 
authority  of  the  Republic."  As  I  said,  it  is 
the  origin,  not  the  vahdity,  of  this  concep- 
tion with  which  I  am  concerned  this  even- 
ing. On  this  very  controversy  there  was 
published  a  volume  of  collected  speeches  by 
M.  Combes,  with  a  preface  by  M.  Anatole 
France.  It  is  called  Une  Campagne 
Ldique.  That  title  contains,  in  my  view, 
the  key  to  the  mystery.  Consider  for  a 
moment  that  M.  Combes  is  not  a  layman, 
but  an  unbeliever;  he  is  a  fanatical  anti- 
Christian,  and  would  repudiate  with  scorn 
any  notion  that  he  was  a  lay  member  of  the 
Catholic  Church.  He  is  a  Secularist,  pure 
and  simple,  and  the  whole  campaign  for 
the  laicisation  of  the  schools,  whether  in 
France,  or  Spain,  or  Portugal,  is  a  cam- 
paign for  their  entire  secularisation,  as  we 


182    CHURCHES  IN  THE  MODERN  STATE 

well  know  and  is  never  denied.  The  ludi- 
crous difficulties  into  which  the  need  of 
removing  all  Christian  and  Theistic  refer- 
ence sometimes  leads  the  compilers  of  text- 
books have  been  frequently  observed. 
Laicisation  might  very  well  describe  the 
Kenyon-Slaney  clause  in  England,  and  is  a 
not  unfair  description  of  some  parts  of  the 
undenominationalist  movement,  for  that  is, 
at  least  in  name,  a  Christian  movement, 
and  is  directed  to  removing  education  from 
clerical  control,  direct  or  indirect,  and  sub- 
stituting a  purely  lay  authority — still 
Christian.  In  France,  of  course,  no  such 
aim  was  ever  suggested,  and  the  Extremists 
have  never  made  any  difficulty  about 
declaring  that  their  object  was  to  de- 
Christianise  the  nation.  Why,  then,  should 
M.  Combes  use  a  term  so  essentially 
ecclesiastical  as  lay  to  describe  his  cam- 
paign ?  I  answer  that  it  was  because  he 
could  not  help  it ;  the  distinction  that  has 
ruled  Europe  for  so  many  centuries  has 
been  a  distinction,  not  between  Christian 
and  non-Christian  societies,  but  between 
cleric  and  layman,  between  the  spiritual 
and   the   temporal    power,   each    of    them 


APPENDIX  I  183 

exercised  within  the  Church  ;  between  the 
ecclesiastical  and  the  secular  governments, 
each  of  them  functioning  within  the  body 
politic.  M.  Combes  used  the  word  Idique 
as  an  unconscious  survival  of  the  day  when 
an  attitude  similar  to  his  own  could  have 
been  rightly  described  by  that  term.  He 
slipped  into  it,  because  the  categories  of 
our  thought  are  still  ruled  by  influences 
that  breathe  of  a  different  world.  He  was 
unconsciously,  and  in  spite  of  himself, 
recalling  a  time  when  troubles  between 
Church  and  State  were  not  troubles  between 
two  societies,  but  between  two  departments 
of  one  society ;  not  between  Church  and 
State  conceived  as  separate  social  entities 
facing  one  another,  like  the  College  and  the 
University,  but  rather  as  between  Church- 
men, i.e.  ecclesiastics,  and  statesmen,  be- 
tween the  King's  Court  and  the  Papal 
Curia,  between  lawyers  and  bishops,  be- 
tween kings  or  emperors  and  popes.  Only 
some  sort  of  odd  historical  survival  affords 
any  explanation  of  the  use  of  such  a  term 
as  Idique  (which  has  no  meaning  except  in 
relation  to  the  Church  and  the  clergy)  by 
so  violent  an  anti-Christian  as  jM.   Emile 


184    CHURCHES  IN  THE  MODERN  STATE 

Combes.  But  this  is  not  all.  It  seems  to 
point  to  a  narrower  use  of  the  term  Church 
than  that  in  vogue  to-day.  In  common 
parlance  the  Church  in  the  Middle  Ages 
meant  not  the  congi^egatio  fidelium — 
though,  of  course,  no  one  would  have 
denied  this  to  be  the  right  meaning — not 
the  whole  body  of  baptized  Christians  as 
distinct  from  those  who  were  not,  but 
rather  the  active  governing  section  of  the 
Church — the  hierarchy  and,  I  suppose,  the 
religious  orders.  The  common  use  of  any 
term,  especially  a  collective  name,  is  to  be 
found,  not  by  wliat  it  sometimes  means 
nor  by  what  it  ought  to  mean  by  that 
for  which  the  society  stands,  but  by  what 
other  set  of  people  it  is  used  to  distinguish 
from — and  this  is  the  case  with  the  word 
Church.  In  the  Middle  Ages  the  Church 
is  used  to  distinguish  the  spirituality  from 
the  laity,  and  in  nine  cases  out  of  ten  it 
means  the  ecclesiastical  body;  in  modern 
times  the  word  Church  is  used  to  dis- 
tinguish Churchmen  from  Dissenters  of 
one  kind  or  another ;  so  that,  whereas 
in  the  Middle  Ages  "I  am  a  Church- 
man" would  mean  "I  am  not  a  layman," 


APPENDIX  I  185 

nowadays  the  same  phrase  means  "  I  am 
not  a  Dissenter."^ 

When  we  talk  of  the  Church  we  com- 

^  Take  the  following  dialogue  from  "  Twelfth  Night " 
between  Viola  and  the  Clown  (Act  iii.  sc,  1)  : 

Vio.  Save  thee,  friend,  and  thy  music.  Dost  thou 
live  by  thy  tabor  ? 

Clo.  No,  sir,  I  live  by  the  church. 

Vio.  Art  thou  a  churchman  ? 

Clo.  No  such  matter,  sir ;  I  do  live  by  the  church  ; 
for  I  do  live  at  my  house,  and  my  house  doth  stand  by 
the  church. 

Is  it  not  evident  here  that  Churchman  means  clergy- 
man ? 

A  similar  use  of  the  term  occurs  in  the  Canons 
of  1604. 

Also  in  the  Somnium  Viridarii  (p.  l67)  it  is  definitely 
stated  that  there  are  two  jurisdictions  : 

"  Nam   in   eadem   civitate   duo   sunt   populi   scilicet 

clericprum  et  laicorum,   12   q.   1 .  c.  duo  ;    duo  genera 

f  simlitunnO  scilicet  ecclesiae  et  seculi ;   1.  di.  c.  clericum 

qui   paganum ;    pontificalis   et  regalis   potestas,  96  di. 

cap.  duo,  et  sic  duae  jurisdictiones." 

I  give  another  instance  from  the  sixteenth  century : 

"  I  am  more  and  more  in  the  mind,  that  it  were  for 
the  good  of  the  world,  that  Churchmen  did  meddle 
with  Ecclesiastick  affaires  onl}^ ;  that  were  they  never 
so  able  otherwise,  they  are  unhappie  statesmen ;  that 
as  Erastiane  Caesaro-Papisme  is  hurtfull  to  the  Church, 
so  ane  Episcopall-Papa-Caesarisme  is  unfortunate  for 
the  State."     (Baillie's  Letters,  iii.  38.) 

This  is  interesting,  for  it  illustrates  also  the  thesis 
of  Lecture  III. 


186   CHURCHES  IN  THE  MODERN  STATE 

monly  mean  the  body  of  Churchmen  as 
against  those  who  are  not  Churchmen. 
The  reason  is  that  we  live  in  a  society 
which  is  rehgiously  heterogeneous ;  so  that 
no  one  nowadays  thinks  of  everybody  as 
ipso  facto  in  one  Church,  but  as  a  member 
of  this  or  that  Christian  community,  all 
equally  tolerated ;  or,  indeed,  of  many 
other  bodies  semi-religious  or  secular,  like 
the  Theistic  Church,  the  Positivist  body, 
the  Labour  Church,  the  Theosophists,  the 
Christian  Scientists,  and  so  forth. 

But  even  here  we  are  not  consistent.  In 
common  speech  men  are  always  dropping 
quite  unconsciously  into  the  older  habit  of 
talk,  which  treats  the  Church  as  primarily 
the  clergy.  Let  me  give  an  instance 
common  in  nearly  all  our  experience.  How 
many  a  youth  has  been  rebuked  by  some 
stiff  Churchman,  probably  an  uncle,  an 
archdeacon  home  from  Barbadoes,  for  say- 
ing that  he  "is  going  into  the  Church," 
when  he  means  taking  Holy  Orders  ?  He 
is  bidden  to  remember  that  he  is  in  the 
Church  as  a  baptized  and  confirmed  mem- 
ber; that  the  Church  does  not  mean  the 
clergy;  that  if  that  is  the  sort  of  doctrine 


APPENDIX   I  187 

he  is  going  to  preach,  he  had  better  adopt 
some  other  caUing,  kc.  kc. 

Now  I  cannot  help  feeling  that  the 
unfortunate  schoolboy  has  a  far  better 
defence  than  he  commonly  imagines.  He 
might  reply  in  something  of  this  sort: 
"True,  my  dear  uncle,  I  made  a  slip, 
and  I  regret  it.  It  is  less  important  than 
you  think.  For  since  you  left  England  for 
the  Barbadoes,  thirty  years  ago,  things  have 
greatly  changed.  We  live  in  days  of  reli- 
gious chaos,  when  no  one  is  likely  to  think 
Churchmanship  a  matter  of  course.  But 
I  should  like  to  point  out  to  you  that  if 
the  phrase  I  have  used  is  theologically 
heretical,  which  I  do  not  deny,  it  is  his- 
torically orthodox,  and  by  my  use  of  it  (a 
pure  sHp,  due  to  the  uprush  of  the  sub- 
liminal consciousness)  I  am  witnessing  to 
the  unity  of  history  in  a  way  which,  with 
all  your  correct  Tractarianism,  you  fail  to 
comprehend.  In  the  Middle  Ages,  and 
indeed  a  very  long  time  since  the  INliddle 
Ages,  as  you  may  see  if  you  will  study 
novels,  the  Church  did  mean  in  ordinary 
speech  the  Church  as  an  effectively  organised 
body,  a  hierarchy  (there  were  no  Houses  of 


188    CHURCHES  IN  THE  MODERN  STATE 

Laymen  in  those  days),  and  nonconformity 
to  the  estabhshed  rehgion  was  either  non- 
existent or  a  crime.  If  you  and  I  had 
been  living  in  the  thirteenth,  fourteenth,  or 
even  the  sixteenth  century,  and  I  had  ven- 
tured to  say  to  a  person  of  your  dignity 
(for  your  dignity  was  as  great  as  your 
chances  of  salvation  were  said  to  be  small 
in  those  days),  'I  belong  to  the  Church,' 
meaning  by  it  I  belong  to  that  branch  of 
the  Church  established  in  this  realm,  what 
would  have  happened?  You  would  have 
been  surprised,  nay  shocked.  You  would 
have  charged  me  with  incipient  heresy 
because  to  say  I  am  a  Churchman  in  that 
sense  implies  that  I  have  my  choice,  and 
that,  if  I  chose,  I  might  be  something  else. 
Even  to  contemplate  such  a  possibility 
borders  upon  heresy.  If  not  treason,  it  is 
very  near  akin  to  misprision  of  treason 
to  Holy  Church.  And  as  your  nephew  I 
should  have  been  fortunate  to  have  escaped 
with  a  sound  avuncular  whipping.  If, 
however,  I  had  said  I  belong  to  the  Church, 
meaning  by  it  what  you  have  just  rebuked 
me  for — meaning,  namely,  I  am  a  clerk  in 
Holy  Orders,  or  in  minor  orders  going  on  to 


APPENDIX   I  189 

greater  things — then  you  would  have  quite 
understood  me.  You  would  have  strongly 
approved,  and  you  would  doubtless  have 
given  me,  though  only  sixteen  and  a  half 
years  old,  a  couple  of  livings  and  one  prebend 
to  be  held  in  plurality,  and  in  commendam 
with  a  non-ohstante  dispensation  from  the 
Holy  Father  permitting  absence,  in  view 
of  the  other  livings  and  offices  which  a 
person  so  important  as  an  archdeacon's 
nephew  would  certainly  have  held.  So  I'll 
trouble  you,  after  all,  for  that  five-pound 
note  you  threatened  to  withdraw." 

That  is  the  point.  The  word  Church- 
man means  to-day  one  who  belongs  to  the 
Church  as  against  others.  In  the  Middle 
Ages  there  were  no  others,  or,  if  there 
were,  they  were  occupied  in  being  burnt. 
A  Churchman  meant  one  who  belonged  to 
the  Church  in  the  narrower  sense  of  its 
governing  body — an  ecclesiastic,  as  the  word 
implies  ;  just  as  statesman  to-day  means  not 
a  member  but  an  officer,  actual  or  potential, 
of  the  State.  In  mediaeval  Europe  folk 
would  be  more  doubtful  whether  you  were 
an  Englishman  or  Bavarian  than  whether 
you  were  or  were  not  a  Churchman  in  our 


190    CHURCHES  IN  THE  MODERN  STATE 

sense,  but  they  might  be  greatly  concerned 
to  know  whether  you  were  clerk  or  lay- 
man. Churchmanship  was  co-extensive  with 
citizenship,  and,  indeed,  with  more  than 
citizenship,  but  the  Church  as  a  hierarchy 
was  not ;  it  was  not  the  realm,  but  an 
estate  of  the  realm. 

When  the  Church  came  in  conflict,  as  it 
often  did,  with  the  State,  it  meant  the  clash 
of  the  ecclesiastical  with  the  civil  hierarchy 
of  officials.  Both  these  bodies  were  com- 
posed of  Churchmen,  in  our  sense,  and 
existed  in  one  society — the  commonwealth. 

All  this  leads  to  the  main  thesis  of  this 
paper — that  in  the  Middle  Ages  Church  and 
State  in  the  sense  of  two  competing  societies 
did  not  exist ;  you  have  instead  the  two 
official  hierarchies,  the  two  departments  if 
you  will :  the  Court  and  the  Curia,  the 
kings'  officials  and  the  popes'.  But  in  these 
controversies  you  have  practically  no  con- 
ception of  the  Church,  as  consisting  of  the 
whole  body  of  the  baptized  set  over  against 
the  State,  consisting  of  the  same  people, 
only  viewed  from  a  different  standpoint  and 
organised  for  a  different  end.  It  is  a  quarrel 
between  two  different  sets  of  people — the 


APPENDIX  I  191 

lay  officials  and  the  clerical,  the  bishops  and 
the  justices,  the  pope  and  the  kings ;  it  is 
not  thought  of  under  that  highly  complex 
difficult  form  of  a  quarrel  between  two 
societies,  each  of  which  was  composed  of 
precisely  the  same  persons,  only  one  is  called 
the  State,  for  it  deals  with  temporal  ends, 
and  the  other  Church,  as  the  Christian 
community.  Such  a  notion  would  be  possible 
only  if  the  sense  of  corporate  personality 
in  Church  and  State  had  been  fully  de- 
veloped. This  was  not  the  case.  The 
conception  of  the  State  was  indeed  very 
inchoate,  and  there  was  very  little  power  of 
distinguishing  it  from  its  officials  ;  and  even 
in  the  Church  this  weakness  led  to  the 
increasing  power  of  the  popes,  for  the  Church 
took  over  its  conceptions  of  government  from 
the  ancient  world,  and  the  Republic  had 
latterly  been  entirely  identified  with  the 
emperors.^      There   was   no   personal   sub- 

^  Cf.  the  notion  of  the  Church  when  "von  der 
Kirche  als  Rechtssubjekt  die  Rede  sei.  Dies  sei  die 
Bedeutung  von  Ecclesia  im  Sinne  des  lokalen  Ver- 
bandes.  Einen  solchen  aher  konnte  man  bei  der  damaligen 
Verfassung  naturgem'dss  nicht  in  der  Gemeinde,  sondern 
lediglich  in  der  klerikalen  Genossenschaft  Jinden.  Und  so 
kam    man    zu    einer    Definition,    wie    sie    Placentinus 


192    CHURCHES  IN  THE  MODERN  STATE 

stratum  behind  of  which  he  was  the  mere 
representative. 

To  make  my  meaning  clear  let  me  quote 
two  passages  from  Maitland's  Lectures  on 

aufstellt :  ecclesia  dicitur  collectio  constituonim  vel  coadunatio 
virorum  vel  mulierum  in  aliquo  sacro  loco  constitiitaniin  ad 
seniendimi  Deo.  So  war  in  der  That  die  Kirche  als 
Rechtssubjekt  in  das  korporativ  Schema  gebracht  und 
man  konnte  ohne  Weiteres  die  Ecclesia  zu  den  Univer- 
sitates  und  Collegia  rechnen  und  den  fiir  diese  geltenden 
Rechtssatzen  unterstellen.  Ja  es  sollte  ihr,  weil  sie  die 
privilegiirteste  unter  den  Korporationen  sei,  kein  bei 
irgend  einer  Korporation  vorkommendes  Reeht  fehlen 
konnen,  weshalb  sie  nainentlich  der  respuhlica  und 
civitas  gleichgestellt  wurde,"     (Gierke,  iii.  195-6.) 

Again  he  cites  the  following  in  the  notes :  "  Si 
enim  aliqua  universitas  privilegiata  est,  hodie,  potius 
privilegiata  est  ecclesia."  "  Ecclesia  aequiparatur 
reipublicae."  But  this  is  of  individual  churches. 
"  Weniger  als  je  wurde  den  Gemeinden  irgend 
ein  aktives  kirchliches  Recht  verstattet,  immer 
entschiedener  trat  die  Kirche,  als  ein  fremder  und 
ausserer  Korper  dem  Volk  gegeniiber.  Erschien  sie 
dem  Deutschen  dieser  Zeit  vorzugsweise  als  eine  grosse 
Innung  oder  Zunft,  so  war  sie  ihm  doch  keineswegs 
eine  Innung  aller  Glaubigen,  eine  Gemeinschaft,  die 
jeder  Laie  mit  einem  Teil  seiner  Personlichkeit  bilden 
half,  sondern  sie  war  ihm  die  Zunft  des  geistlichen 
Standes.  .  .  .  Freilich  war  es  dem  Laien  unerlasslich 
fiir  sein  Seelenheil,  an  dexTi  von  der  Kirche  besessenen 
und  verwalteten  Heilsschatz  Anteil  zu  erlangen ;  aber 
zu  diesem  Behuf  verhandelte  und  verkehrte  er  mit  ihr 


APPENDIX  I  193 

Co7istitutional  Histo7'y.     On  pp.  101-2  we 
read: 

"  While  we  are  speaking  of  this  matter 
of  sovereignty,  it  will  be  well  to  remember 

wie  mit  einer  dritten  Person,  kaum  anders  wie  mit  der 
Kaufmanns  oder  Gewerbezunft,  wenn  er  ihrer  Waaren 
bedurfte.  Die  Kirche  war  in  Allem  ein  geistlicker  Staat 
fdr  sick,  in  welchem  der  Laie  keines  Biirgerrechts 
genoss."  (Gierke,  i.  427  ;  cf.  also  287.)  "  Bei  dieser 
AiifFassung  der  staatliehen  Rechtssubjectivitat  konnten 
es  die  Romer  zu  Wort  und  BegrifF  der  Staatsperson- 
lichkeit  nicht  bringen.  Sie  blieben  bei  der  Subjecti- 
vitJit  des  jjopulns,  und  spater  des  Kaisers  stehen.  Diese 
Subjectivitat  aber  unterstellten  sie,  weil  einzig  in  ilirer 
Art,  keinem  hoheren  GattungsbegrifF."  (Gierke,  iii. 
50,  Das  Deutsche  Genossenschaftsrecht.)  Cf.  also  the 
following  passage  in  regard  to  the  Church.  After 
describing  the  Church  as  God-planted,  "Wenn  einer 
so  konstruirten  Gesammtkirche  Rechtspersonlichkeit 
beigelegt  wird,  so  kann  Quelle  derselben  nicht  die  den 
Korper  bildende  Gesammtheit,  sondem  lediglich  Gott  und 
mittelhar  dessen  irdischer  Stellverlreter  sein.  In  der  That 
hat  daher  nach  der  Lehre  der  Kanonisten  der  gottliche 
Stifter  sclbst  seiner  Kirche  zugleich  mit  der  Heils- 
voUniacht  die  fiir  deren  Durchfiihrung  erforderliche 
Rechtssubjektivitat  verliehen.  Und  allein  von  Gott 
und  seinem  Vikar  sind  fort  und  fort  alle  einzelnen 
Privilegien  und  Rechte  abzuleiten,  welche  der  Ge- 
sammtkirche um  ihres  geistlichen  Berufes  willen  zuste- 
hen,  wiihrend  auch  die  hochste  weltliche  Macht  diese 
Rechte  nicht  zu  mindern,  sondern  nur  rein  weltliche 
Privilegien  hinzuzufiigen  vermag.    Ebenso  aber  findet 

N 


194    CHURCHES  IN  THE  MODERN  STATE 

that  our  modern  theories  run  counter  to  the 
deepest  convictions  of  the  Middle  Ages — 
to  their  whole  manner  of  regarding  the  re- 
lation between  Church  and  State.  Though 
they  may  consist  of  the  same  units,  though 
every  man  may  have  his  place  in  both  or- 
ganisms, these  two  bodies  are  distinct.  The 
State  has  its  king  or  emperor,  its  laws,  its 
legislative  assemblies,  its  cou?is,  its  Judges ; 
the  Chuj'ch  has  its  pope,  its  prelates,  its 
councils,  its  laws,  its  couits.  That  the 
Church  is  in  any  sense  below  the  State  no 
one  will  maintain,  that  the  State  is  below 
the  Church  is  a  more  plausible  doctrine ; 
but  the  general  conviction  is  that  the  two 
are  independent,  that  neither  derives  its 
authority  from  the  other.  Obviously,  when 
men  think  thus,  while  they  more  or  less 
consistently  act  upon  this  theory,  they 
have  no  sovereign  in  Austin's  sense ;  before 

die  eiiiheitliche  Kirchenpersonlichkeit  ihren  obersten 
Ti-iiger  und  Repraesentanten  nicht  in  der  Gesammt- 
heit,  sondern  in  Gott  selbst  und  mittelbar  in  dessen 
irdiscliem  Statthalter,  so  dass  sogar  als  Subjekt  der 
Rechte,  welche  fiir  die  ecclesia  U7iiversalis  in  Anspruch 
genommen  werden,  Gott  oder  Christus  selbst  und 
vertretungsweise  dann  auch  der  Papst  bezeichnet  wer- 
den  kann."     (Gierke,  iii.  249,  250.) 


APPENDIX  I  195 

the    Reformation    Austin's    doctrine    was 
impossible." 

In  regard  to  the  theory  of  sovereignty, 
this  statement  is  doubtless  true  of  the 
smaller  States.  It  is  not  true  of  the 
Papacy ;  the  plenitudo  potestatis  being 
simply  sovereignty  in  the  Austinian  sense, 
developed  by  the  canonists  from  Roman 
law  and  applied  to  the  Pope.  It  is  not  true 
of  the  more  extreme  Imperialist  doctrine; 
the  lawyers  who  told  Frederic  Barbarossa 
that  the  property  of  all  his  subjects  was 
really  his,  were,  in  theory  at  least,  strong 
Austinians,  as  was  the  normal  civilian.  In- 
deed, it  is  from  Rome,  first  imperial  then 
papal,  i.e.  from  civil  and  canon  law,  that 
the  modern  doctrine  of  sovereignty  derives. 
In  its  modern  form  it  goes  through  the 
mediaeval  canonists  to  Renaissance  thinkers 
like  Bodin,  thence  through  Hobbes  and 
the  supporters  of  Divine  Right  to  Austin. 
Even  in  the  fourteenth  century  it  is  applied 
to  the  minor  States.  Baldus,  I  believe, 
was  the  first  to  say  that  f^a?  est  imperatoi' 
in  regno  sno,  and  we  find  one  of  our  own 
kings  claiming  to  be  entier  empereur  dans 
son  royaume^  and  this,  the  claim  to  sove- 


196    CHURCHES  IN  THE  MODERN  STATE 

reignty,  is  the  true  meaning  of  the  preamble 
to  the  great  statute  of  appeals,  "  this  realm 
of  England  is  an  Empire."  Moreover,  it 
is  not  quite  true  to  assert  that  no  one  said 
that  the  Church  ought  to  be  below  the 
State.  For  that  is  the  exact  argument  of 
the  twelfth -century  Erastian  treatise  by 
Gerard  of  York,  printed  by  Bohmer  in  the 
Libelli  de  Lite.  He  declares,  indeed,  not 
that  the  Church  is  below  the  State,  but 
that,  in  the  one  commonwealth,  which  you 
can  call  either  kingdom  or  church  at  your 
pleasure,  the  secular  power  is  above  the 
ecclesiastical.  Still,  of  course,  it  is  true 
that  in  the  main  Austinian  doctrine  is  not 
applicable  to  the  feudal  commonwealth  of 
the  Middle  Ages. 

It  is  not  of  this  matter  that  I  want  to 
speak  at  length,  but  of  the  sentences  in 
italic.  Later  on  in  the  book  there  is  an 
even  more  emphatic  expression  of  the  same 
view : 

"  The  mediaeval  theory  of  the  relation 
between  Church  and  State  seems  this,  that 
they  are  independent  organisms  consisting 
nevertheless  of  the  same  units  "  (p.  506). 

To  that  statement  1  say  quod  non.     1 


APPENDIX  I  197 

make  this  criticism  with  much  diffidence, 
for  every  word  that  Maitland  wrote  is  worth 
its  weight  in  gold.  Yet  we  must  remember 
that  these  lectures  were  not  written  to  be 
published,  and  that  they  were  delivered  in 
1887,  before  he  entered  upon  those  studies 
which  resulted  in  his  work  on  The  Canon 
Law  and  his  translation  of  Gierke.  To 
say  the  very  least,  it  is  not  certain  that  he 
would  have  written  thus  fifteen  years  later. 
Nor,  again,  do  I  desire  to  assert  an  "  absolute 
not."  I  do  not  deny  that  such  a  view  of 
Church  and  State  was  possible  to  acute 
minds  in  the  Middle  Ages,  any  more  than 
I  assert  that  because  men  normally  meant 
by  the  Church  the  hierarchy  they  did  not 
frequently  mean  the  congregatio  fidelium. 
I  think  that  in  the  later  Middle  Ages  men 
were  moving  in  that  direction.  Judging 
by  his  letters  and  manifestoes,  I  think  it 
not  impossible  that  Frederic  II  held  this 
view  or  something  like  it.  What  I  do 
think  is  that  this  view  in  no  way  repre- 
sented the  ruling  thought  of  the  Middle 
Ages,  that  it  was  not  the  necessary  back- 
ground of  their  minds,  that  all,  or  nearly 
all,  the  evidence  points  the  other  way,  and 


198    CHURCHES  IN  THE  MODERN  STATE 

that,  if  we  accepted  Maitland's  view,  we 
should  be  left  with  no  intelligible  explana- 
tion of  certain  phenomena  in  the  sixteenth 
century,  to  say  nothing  of  existing  contro- 
versies and  modes  of  thought. 

When  we  do  find  one  pope  speaking  of 
God's  vicar  as  master  both  of  the  terrene 
and  the  spiritual  empire,  he  shows  by  his 
words  that  he  cannot  think  of  them  apart. 
The  notion  of  a  single  society  is  so  universal 
that,  even  where  in  words  the  popes  admit 
two,  it  is  in  order  to  deny  it  in  fact  and  to 
claim  for  themselves  the  lordship  of  both/ 

Moreover,  when  the  Inquisition  handed 
a  heretic  over  to  the  secular  arm,  what  was 
intended  by  the  figure?     Surely,  that  the 

^  Quae  nimirum  inter  cetera  dulceclinis  suae  verba 
illud  nobis  videbantur  consuTere,  per  quod  et  status 
imperii  gloriosius  regitur  et  sanctae  ecclesiae  vigor 
solidatur ;  videlicet  ut  sacerdotium  et  imperium  in 
unitate  concordiae  coniugantur.  Nam  sicut  duabus 
oculis  humanum  corpus  temporali  lumino  regitur,  ita 
his  duabus  dignitatibus  in  pura  religione  concord- 
antibus  corpus  ecclesiae  spirituali  lumine  regi  et  illu- 
minari  probatur.  (Gregor  \'^II  to  Rudolf  of  Suabia, 
JafFe,  Regis.,  i.  I9.) 

This  is  a  fair  sample  of  the  usual  way  of  regarding 
it.  Later  on  in  the  Soiniiium  Viridarii  it  is  denied  that 
two  jurisdictions  imply  two  States. 


APPENDIX  I  199 

two  arms,  the  secular  and  spiritual  powers, 
were  arms  of  the  same  body — or  else  the 
metaphor  makes  nonsense.  Yet  the  view  we 
combat  would  make  two  different  bodies. 

Let  me  put  before  you  the  following 
considerations  :  Is  it  not  rather  improbable 
that  this  difficult  position  of  two  corporate 
bodies,  each  of  the  same  individual  persons 
though  totally  distinct  as  corporate  person- 
alities, should  have  been  thought  of  in  a 
world  whose  ideals  were  symbolised  in  the 
Holy  Roman  Empire,  whose  true  respublica 
is  the  civitas  Dei  1  Even  in  our  own  day, 
when  there  is  so  much  to  favour  it,  views 
of  this  sort,  at  least  in  regard  to  established 
Churches,  are  not  accepted  readily  or  with- 
out argument.  How  would  it  have  been 
possible  in  a  world  where  the  unbaptized  and 
the  excommunicate  were  outlaws,  and  citi- 
zenship and  Christianity  were  inextricably 
bound  up  ?  Nobody  in  the  Middle  Ages 
denied  that  the  king  was  God's  minister, 
or  that  the  bishops  were  great  lords  in  the 
commonwealth.  Pope  and  emperor,  when 
they  quarrelled,  quarrelled  like  brothers,  as 
members  of  the  same  society,  the  civitas 
Dei. 


200    CHURCHES  IN  THE  MODERN  STATE 

The  fact  is,  ecclesia  and  respublica  are 
more  often  than  not  convertible  terms  in 
mediaeval  Hterature.  One  writer,  who  is 
well  known,  describes  (much  in  Maitland's 
way)  *'  a  system  of  two  sets  of  law  and 
courts  "  ;  but  it  is  of  two  sets  of  people  that 
he  is  thinking — the  clergy  and  the  laity, 
and  it  is  within  the  whole — the  one  society, 
the  civitas,  which  he  says  is  the  ecclesia — 
that  these  two  bodies  are  to  be  found.  I 
do  not  say  but  that  later  on,  after  the 
crystallisation  of  national  States  and  the 
development  through  St.  Thomas  of  the 
habit  of  arguing  about  the  Church  as  one 
among  a  class  of  political  societies,  some 
such  view  as  Maitland  suggests  may  not 
have  been  now  and  then  discernible.  But 
I  think  it  was  very  rare. 

And  what  we  want  to  know  is  not  how 
some  theorist  formulated  the  matter,  but 
what  were  the  "  common  thoughts  of  our 
forefathers."  Supposing  that  I  had  gradu- 
ated, not  at  Cambridge  but  at  Bologna  in 
the  thirteenth  century,  that  I  was  a  doctor 
in  utroque  jure^  a  protonotary  apostolic  and 
au  auditor  of  the  rota,  should  I  have  declared 
the  kingdom  or  the  empire  to  be  a  society 


APPENDIX  I  201 

quite  distinct  from  the  Church,  though  con- 
taining the  same  units  ?  I  trow  not.  I  am 
much  more  likely  to  have  said  that  the 
limits  of  the  kingly  power  were  determined 
by  the  Church,  meaning  the  hierarchy,  and 
that  the  king  must  do  his  duty  because  he 
was  the  minister  of  God  and  must  therefore 
be  subject  to  His  vicar.  So  far  from 
denying  the  king  qua  king  to  be  a  member 
of  the  same  society  as  my  own,  I  should 
have  made  his  membership  the  ground  of 
a  due  reverence  for  protonotaries  apostolic. 
Supposing,  again,  I  had  been  a  clerk  of  the 
king's  court  or  a  royal  justice  or  one  of  the 
barons  at  JMerton,  who  were  not  going  to 
have  the  laws  of  England  changed  to  suit 
the  bishops,  should  I  have  asserted  that 
they  were  members  of  a  different  State; 
should  I  not  rather  have  claimed  that, 
though  specially  and  even  reprehensibly 
privileged,  though  forming  a  distinct  order 
in  the  commonwealth,  they  were  yet  Eng- 
lish heges  and  should  be  made,  willy-nilly, 
to  do  and  forbear  those  things  lawful  to 
English  lieges,  and  none  others  ?  Even  if — 
pardon  the  impertinence — I  had  been  either 
a  pope  on  the  one  hand  or  an  emperor  on 


202    CHURCHES  IN  THE  MODERN  STATE 

the  other,  should  I  have  thought  of  my 
rival  as  the  head  of  another  society  with 
which  my  own  relations  were  strictly  inter- 
national ?  Hardly.  I  should  rather  have 
deemed  him  a  "  dear  colleague,"  and  felt 
it  as  a  God-imposed  duty  to  prevent  him 
injuring  his  character  by  attempting  a 
dictation  over  me,  which  for  God's  cause 
and  solely  as  a  matter  of  duty  I  was  deter- 
mined to  resist.  Nor  was  there  warrant 
in  antiquity  for  this  notion  of  the  two 
societies.  The  conception  of  a  religious 
society  as  distinct  from  the  State  had  not 
dawned  upon  the  unified  civihsation  of 
Greece  and  Rome.  It  was  alien  alike  from 
the  City-State  and  the  Pagan  Empire. 
When  it  did  dawn  upon  some  men's 
minds,  what  was  the  universal  response  ? 
Christiani  ad  hones.  Sir  William  Ramsay 
has  made  it  clear  that  the  persecution  of 
the  early  Church  was  a  matter  of  policy,  and 
that  it  was  directed  against  this  very  notion, 
the  claim  to  be  a  separate  society,  while 
still  remaining  Roman  citizens.  It  was  the 
Church  as  upholding  "a  new  non-Roman 
unity"  that  men  feared.  The  primitive 
Church    was    without    question    a    society 


APPENDIX  I  203 

distinct  from  the  Roman  State/  As  she  grew 
to  strength,  and  threatened  to  absorb  the 
whole  population,  there  was  every  likelihood 
of  the  view  arising  which  was  outlined  by 
Maitland. 

But  it  did  not  arise.  The  old  conception, 
that  of  Pagan  and  Jew,  was  too  strong  for 
it.     After  Constantine  granted  the  peace  of 

^  "  Dagegen  lag  allerdings  von  vornherein  eine 
gewaltige  negative  Umwalzung  der  antiken  Anschau- 
ungen  von  Staat  und  Recht  in  den  vom  Wesen  des 
Christentlmms  untrennbaren  Principien  welche  dem  staat- 
lichen  Verbande  einen  grossen  Theil  seines  bisherigen 
Inhalts  zu  Gunsten  der  religiosen  Gemeinschaft  und 
des  Individuums  entzogen.  Einmiithig  bekannte  man 
sich  zu  dem  Glauben,  dass  das  innere  Leben  der 
Einzelnen  und  ihrer  religios-sittliehen  Verbande  keiner 
weltlichen  Macht  unterworfen  und  iiber  die  Sphiire 
der  staatlichen  Daseinsordnung  erhaben  sei.  Damit 
etitschwand  die  allunifassende  Bedeutimg  des  Staats.  Der 
Mensch  gieng  nicht  mehr  im  Burger,  die  Gesellschaft 
nicht  mehr  im  Staate  auf.  Das  grosse  Wort,  dass  man 
Gott  mehr  gehorchen  soil  als  den  Mensclien,  begann 
seinen  Siegeslauf.  Vor  ilim  versank  die  Omnipotenz 
des  heidnischen  Staats.  Die  Idee  der  immanenten 
Schranken  aller  Staatsgewalt  und  aller  Unterthanen- 
pflicht  leuchtete  auf.  Das  Recht  und  die  Pflicht  des 
Ungehorsams  gegen  staatlichen  Gewissenszwang 
wurden  verkiindigt  und  mit  dem  Blute  der  Martyrer 
besiegelt."  (Gierke,  op.  cit.  iii.  123.)  Cf.  also  the 
author's  remarks  on  the  effect  of  St.  Augustine's  De 
Civilate  Dei.     i^Ibid.,  124-7.) 


204    CHURCHES  IN  THE  MODERN  STATE 

the  Church,  it  was  not  long,  at  most  three- 
quarters  of  a  century,  before  the  old  con- 
ception ruled  again  of  a  great  unity  in  which 
civil  and  ecclesiastical  powers  were  merely 
separate  departments.  Had  the  world  been 
ripe  for  toleration  of  rival  bodies  things 
might  have  been  very  different.  But  it  was 
not  ripe.  The  emperors,  as  you  know,  were 
treated  almost  as  ecclesiastical  powers ; 
coercion  was  employed  on  both  sides  in  the 
Arian  controversy;  finally  the  Catholics 
conquered  under  Theodosius  the  Great. 
Arianism  was  made  a  crime ;  Paganism  was 
suppressed ;  and  the  world  was  ripe  for  that 
confusion  of  baptism  and  citizenship  which 
ruled  the  Middle  Ages.  True,  there  were 
many  struggles  between  the  different  autho- 
rities, and  their  issues  varied  with  time  and 
place.  But  neither  emperors  nor  prelates 
were  treated  as  rulers  of  rival  societies. 
The  Code  of  Justinian  was  compiled  sub- 
sequently to  the  De  Civitate  Dei  of  St. 
Augustine.  The  whole  spirit  of  both  tends 
to  identify  Church  and  State,  although 
neither   quite   realised  this.^      The   Pagan 

^  See   on   the   Byzantine   view   of  the   two   powers, 
Mr.  Lacey's  remarks  in  Marriage  in  Church  and  State. 


APPENDIX  I  205 

State  was  also  a  Church,  and  the  mediaeval 
Church  was  also  a  State ;  the  Church  and 
tlie  State  in  theory.  Each  governs  the 
whole  of  life,  and  the  problem  is  not 
whether  you  take  power  from  one  society 
and  give  it  to  the  other,  but  where  you 
tilt  the  balance  of  authority — on  to  the 
side  of  the  lay  officials  or  to  that  of 
the  clerics.  Shall  power  belong  to  him 
who  wields  the  sword  or  to  him  who 
instructs  the  wielder  ?  Roman  Law,  as  it 
entered  the  mediasval  world,  is  the  law  of 
a  medisevalised  empire,  and  the  code  begins 
with  the  rubric,  De  Suinvia  Trinitate  et 
Fide  Catholica.  Much  of  the  liberty 
afterwards  claimed  by  canonists  could  be 
supported  by  adroit  quotations  from  the 
imperial  law. 

All  this  was  crystallised  in  the  idea  of 
the  Holi/  Roman  Empii'e,  the  governing 
conception  of  a  great  Church- State,  of 
which  it  is  hard  to  say  whether  it  is  a  reli- 
gious or  a  temporal  institution.  Half  the 
trouble  came  from  the  fact  that  popes  and 
emperors  were  heads,  in  theory  co-equal,  of 
the  same  society.  The  argument  so  con- 
stantly   repeated,  that    the    unity    of   the 


206    CHURCHES  IN  THE  MODERN  STATE 

society  needs  a  single  person  as  the  centre, 
and  that,  therefore,  the  secular  power  must 
be  subject  to  the  spiritual,  owes  its  force  to 
the  very  fact  that  men  were  incapable  of 
seeing  two  societies,  and  that  the  theory  of 
two  co-equal  heads  under  Christ  as  King 
did  not  work  in  practice.  The  pope,  we 
must  remember,  is  the  emperor's  archbishop  ; 
foreign  he  might  be  to  England  and  France 
as  nationality  crystallised,  but  no  emperor 
could  afford  to  treat  him  as  foreign.  That 
would  have  been  to  give  up  all  claims  to 
Italy. 

The  lesser  conflicts  were  all  conducted 
under  the  shadow  of  this  conception.  Al- 
though in  countries  like  England  or  France  it 
may  have  been  easier  to  see  the  distinctions  of 
the  two  powers,  its  meaning  was  not  grasped 
till  later,  and  men  did  not  talk  of  two 
societies,  separate  though  composed  of  the 
same  individuals. 

But  it  will  be  said,  what  of  the  Canon 
Law  ?  Here  is  a  separate  body  of  legal 
rules  modelled  in  its  form  on  the  civil  law 
and  claiming  sometimes  to  override  it,  pos- 
sessed of  a  higher  sanction,  so  that  towards 
the  close   of  the   Middle   Ages   a   French 


APPENDIX  I  207 

writer  can  say  that  omnia  jura  civilia  sunt 
canonica} 

Now  it  is  true  that  in  so  far  as  the  Canon 
Law  governed  the  laity,  and  existed  by  the 
side  of  national  laws,  its  existence  points 
towards  a  belief  in  two  distinct  social  or- 
ganisms ;  yet  I  do  not  think  that  this 
inference  was  drawn  at  the  time.  The 
passage  I  alluded  to  above  treats  it  as  mainly 
laiv  for  the  clergy,  and  so  far  as  that  was 
usual,  this  view  would  tally  with  all  I  have 

^  The  following  passages  are  a  fair  indication  of 
the  common  view  :  "  Si  auctoritas  sacra  pontificum  et 
potestas  imperialis  vere  glutino  caritatis  adinvicem 
complerentur ;  nihil  est  enim  in  praesenti  seculo  ponti- 
fice  clarius^  nihil  rege  sublimius."  Cf.  also  Henry  IV  to 
Greg.  VII  (JafFe^  Bib.  Rer.  Ger.,  ii.  46)  :  "  Cum  enim 
regnum  et  sacerdotium,  ut  in  Christo  rite  administrata 
subsistant,  vicaria  sua  ope  semper  indigeant."  From  the 
following  sentence  from  the  Deposition  of  Frederic  II, 
it  can  readily  be  seen  how  intimately  connected  are 
canon  and  civil  law  :  "  Nonne  igitur  hec  non  levia,  sed 
efficacia  sunt  argumenta  de  suspicione  heresis  contra 
eum^  cum  tamen  hereticorum  vocabulo  illos  Jtis  civile 
contineri  asserat,  et  latis  adversus  eos  sentenciis  debere 
subcumbere  qui  vel  levi  argumento  a  judicio  catholice 
religionis  et  tramite  detecti  fuerint  deviare  ?  "  (Deposi- 
tion of  Frederic  II.  Huillard  -  Breholles,  Historia 
Diplomatica  F.  II,  vi.  326.)  Elsewhere  he  is  accused  of 
treason  towards  the  pope  :  "  Non  sine  proditionis  nota, 
et  lese  crimine  majestatis."     {Ibid.,  322.) 


208    CHURCHES  IN  THE  MODERN  STATE 

been  saying.  The  popes,  however,  doubtless 
thought  they  were  legislating  for  all  Chris- 
tians, but  these  popes  were  claiming  a  pleni- 
tudo  potestatis  over  kings  and  princes,  which 
implied  that  all  secular  law  was  merely 
allowed  by  them.  Moreover,  in  those  days 
of  feudal  courts,  men  were  in  the  habit  of 
seeing  every  kind  of  competing  jurisdiction 
without  definitely  claiming  that  it  destroyed 
such  unity  in  the  State  as  they  were 
accustomed  to  see.  The  very  looseness  of 
structure  of  the  mediaeval  State,  if  we  are  to 
use  the  term,  enabled  the  canonists  to  do 
their  work  alongside  of  the  secular  courts 
without  drawing  all  the  conclusions  we 
should  do.  Unification  was  the  work  of  the 
Renaissance  and  the  Reform,  and  it  was  not 
till  then  that  men  would  come  to  argue  that 
it  must  either  exist  by  the  allowance,  ex- 
press or  tacit,  of  the  prince,  or  else  that  the 
prince  must  be  in  reality  a  subject. 

Moreover,  I  do  not  think  people  suffici- 
ently realise  how  systems,  apparently  com- 
peting, went  on  together  in  practice. 
Legal  writers,  like  Bartolus  on  the  one  hand 
or  Innocent  IV  on  the  other,  quote  the 
canon  law  and  the  civil  law  indiscriminately, 


APPENDIX  I  209 

and  never  seem  conscious  of  them  as 
being  the  laws  of  two  separate  societies.  I 
cannot  find  this  conception  in  Innocent's 
great  commentary  on  the  Decretale  of 
Gregory  IX.  Bartolus  wrote  a  treatise  on 
the  differences  between  the  two  systems,  but 
there  is  no  hint  that  he  regarded  them  as 
the  laws  of  two  different  States.^  The  fact 
is  that  it  was  the  two  together,  treated  as 
an  ideal  rather  than  coercive  law,  which 
ruled  men's  minds ;  and  out  of  this  amal- 
gam rose  modern  politics  and  international 
law. 

Again,  if  you  take  the  Unam  Sanctam 
of  Boniface  VIII,  that  does  not  assert  the 
power  of  the  Church  over  the  State.  Rather 
it  asserts  the  power  of  the  Pope  over  every 
human  being.^     In  fact  the  personalisation 

^  It  is  not  certain  that  this  attribution  is  correct. 
But  it  makes  no  difference  to  this  point  whether  the 
book  was  by  Bartolus  or  another  lawyer. 

^  Cf.  Henry  of  Cremona's  interesting  treatise  on  be- 
half of  Boniface  VIII,  printed  in  Scholz,  Die  Publizistik 
zur  Zeit  Philipps  des  Schotien,  App.  475.  The  heavenly 
hierarchy  has  its  ranks  and  orders,  so  also  has  the 
earthly : — 

Nam  sunt  diversi  ordines  et  diverse  potestates 
ecclesiastice  et  seculares  et   ultima   est   summus  pon- 

O 


210    CHURCHES  IN  THE  MODERN  STATE 

of  authority  in  popes,  kings,  and  feudal  lords 
and  prelates  was  one  of  the  causes  that 
retarded  the  growth  of  such  theory  as  that 
of  the  two  kinds  of  societas  perfecta.  The 
conflicts  between  the  two  powers  are  habitu- 
ally spoken  of  as  struggles  between  the 
sacerdotium  and  the  i^egnum ;  although  the 
wider  terms  respublica  and  ecclesia  are  not 
unknown,  it  is  surely  reasonable  to  interpret 
them  by  the  former.  I  give  one  or  two 
stanzas  of  a  doggerel  poem  by  Gualterus  de 
Insula  from  the  Lihelli  de  Lite}  They  re- 
present the  natural  categories  into  which 
men's  thoughts  fell  when  they  discussed 
the  topic. 

tifex,  in  quo  omnes  potestates  agregantur,  et  ad  quem 
reducuntur  et  ad  quem  tamquam  in  simplieissinum 
terminantui-  et  ad  quod  designandum  summus  pontifex 
in  coronacione  sua  initram  seu  coronam  portat  in 
capite,  que  a  base  seu  inferiori  parte  lata  incipit  et 
terminatur  in  simpliei  cornu,  quia  latitude  et  diversitas 
omnium  ordinum  et  potestatura  in  persona  ipsius  summi 
pontificis  terminantur  et  ad  eum  reducuntur. 

Is  it  possible  that  a  passage  like  this  would  have 
been  written  in  a  day  when  Church  and  State  were 
conceived  as  two  societies,  each  consisting  of  the 
same  units  ? 

1  iii.  559-60. 


APPENDIX  I  211 

"  Per  Noe  colligimus  summum  patriarcham 
Totius  ecclesiae  caput  et  monarcham. 

Ergo  vel  ecclesiae  membrum  non  dicatur 
Caesar,  vel  pontifici  summo  supponatur. 

Major  et  antiquior  est  imperialis 
Dignitas  quam  cleri  sit  vel  pontificalis, 
'  Major '  dico  tempore,  semper  enim  malis 
Regibus  subiacuit  terra  laycalis. 

Imperator  Esau  major  quidem  natu. 
Papa  quidem  Jacob  est,  minor  enim  statu  : 
Ille  sceptro  rutilat,  iste  potentatu, 
Ille  major  viribus,  iste  dominatu. 

Caesar  habet  gladium  sed  materialem, 
Hunc  eundem  pontifex  sed  spiritualem. 
Caesar  ergo  suscipit  usum  temporalem 
Ab  eo,  qui  possidet  curam  pastoralem. 

Igitur  si  vera  sunt  ista  quae  promisi 
Nichil  habet  penitus  imperator,  nisi 
Ab  CO,  qui  possidet  claves  paradisi. 
At  Petri  vicarius  :  non  est  sua  phisi.'''' 

The  famous  passage  of  Pope  Gelasius  about 
the  two  powers,  so  often  quoted,  is  no  evi- 
dence the  other  way ;  it  refers  to  the  two 
governing  authorities  of  the  mundm,  which 
one  writer  declares  to  mean  the  State,  not 


212    CHURCHES  IN  THE  MODERN  STATE 

two  separate  societies.  Its  date  alone  is  suffi- 
cient proof  that  it  had  reference  to  the 
Christianised  ancient  empire,  when  such  a 
division  was  not  to  be  thought  of. 

John  of  Salisbury,  in  his  Policraticus, 
holds  very  high  views  of  the  function  of  the 
priest  in  the  State,  but  it  is  a  power  within, 
not  outside,  the  State  that  is  to  rule  it,  like 
the  soul  in  the  body. 

One  writer,  Jordan  of  Osnabruck,  equates 
the  three  powers,  the  sacerdotmvi,  the  im- 
perium,  and  the  studiuvi,  as  all  equally 
needful  for  the  health  of  the  Church.  The 
sacerdotium  he  assigns  to  the  Romans  as 
the  senior,  the  imperium  to  the  Germans, 
and  the  studium  to  the  French  as  being 
more  perspicacious.  That  such  a  view 
could  even  be  thought  of  is  evidence  how 
far  asunder  were  the  mediaeval  notions  on 
the  subject  from  those  natural  to  us.^ 

^  Cf.  Jordanus  von  Osnabruck,  Buck  iiber  das  Romiscke 
Reich  (ed.  Waitz,  p.  71). 

Debitus  et  necessarius  ordo  requirebat,  ut  sicut 
Romani  tamquam  seniores  sacerdotio,  sic  Germani  vel 
Franci  tamquam  juniores  imperio,  et  ita  Franci  quae 
vel  Gallic!  tamquam  perspicatiores  scientiarum  studio 
dotarentur,  et  ut  fidem  catholicam  quam  Romanorum 
constantia  firmiter  tenet,  illam  Germanorum  maguani- 


APPENDIX  I  213 

Wyclif,  in  his  Speculum  Militantis  Ec- 
clesiae,  declares  that  the  ecclesia  or  common- 
wealth consists  of  three  sections — lords, 
clergy,  and  commons.  The  argument  of  the 
book  is  that  if  the  Church  were  disendowed 
the  nobles  would  be  richer  and  have  less 
motive  to  oppress  the  poor.  Whether  that 
result  followed  the  dissolution  of  the  monas- 
teries we  need  not  here  determine.  A¥hat 
is  certain  is  that  it  never  occurred  to  him  to 
conceive  of  Church  and  State  as  two  dis- 
tinct societies  composed  of  the  same  units. 
The  same  is  the  case  with  Marsilius;  but 

mitas  imperialiter  tenere  precipiat,  et  eandem  Galli- 
corum  argutia  et  facuudia  ab  omnibus  esse  tenendam 
firmissimis  rationibus  approbet  et  demonstret.  Hiis 
siquidem  tribus,  scilicet  sacerdotio  imperio  et  studio, 
tamquam  tribus  virtutibus,  videlicet  vitali,  naturali  et 
animali,  sancta  ecclesia  katholica  spiritualiter,  vivi- 
ficatur,  augmentatur  et  regitur.  Hiis  etiam  tribus, 
tamquam  fundamento  pariete  et  tecto,  eadem  ecclesia 
quasi  materialiter  perficitur.  Et  notandum  quod,  sicut 
ecclesie  materiali  uaum  fundamentum  et  unum  tectum 
sufficit,  sed  unus  paries  non  sufficit,  sic  sacerdotio  una 
sedes  principalis,  videlicet  Roma  et  studio  unus  locus 
principalis,  videlicet  Parisiis  sufficit:  sed  imperio 
quatuor  loca  principalia  sancti  Spiritus  ordinatione 
novimus  attributa,  que  sunt  Aquisgrani,  Arelatum 
Mediolanum  et  urbis  Roma. 


214    CHURCHES  IN  THE  MODERN  STATE 

his  Erastianism  is  so  marked  that  it  may- 
be thought  that  his  evidence  is  not  to  the 
point.  It  is  notable,  however,  that  he 
states  (while  disapproving  the  fact)  that  in 
ordinary  use  the  Church  meant  the  clergy 
and  not  the  whole  Christian  people ;  at 
least,  he  says,  that  is  the  most  common 
usage. 

Lastly,  let  us  note  the  surprise  of  Arch- 
bishop Whitgift  at  the  doctrine  of  two 
societies.  Cartwright,  the  Presbyterian 
protagonist,  was  strongly  imbued  with  the 
notion  of  two  kingdoms.  Whitgift  seems 
hardly  able  to  believe  his  eyes  as  he  reads 
it.  This  comes  out  passim  in  ^Vhitgift's 
answer  to  Cartwright. 

I  need  hardly  point  out  that  this  is  also 
the  view  of  Hooker.  And  that  is  the  point. 
How  did  that  view  arise  ?  The  very  general 
Erastianism  of  most  of  the  Reformers  is 
well  known.  It  came  from  this  very  fact. 
Society  being  conceived  as  fundamentally- 
one,  and  the  clergy  in  their  eyes  not  having 
done  their  part  in  removing  abuses,  recourse 
must  be  had  to  the  other  power  in  the 
Church,  the  secular  government.  When 
Luther  appealed  to  the  German  princes  to 


APPENDIX  I  215 

take  up  the  work  of  Reform  he  did  not 
mean  that  he  was  appeaUng  from  the  Chris- 
tian Church  to  a  secular  State,  but  merely 
from  the  clerical  to  the  civil  authority. 
Any  other  view  is  preposterous. 

My  point  is  that  this  distinction  of  the 
two  societies  is  either  very  primitive,  dating 
from  the  days  of  persecution,  or  else  very 
modern,  dating  from  the  religious  divisions 
of  Europe.  I  think  that  it  came  about  in 
some  such  way  as  this  : 

( 1 )  The  analysis  of  political  forms,  begun 
by  St.  Thomas  on  the  Aristotelian  basis,  set 
on  foot  the  habit  of  reasoning  about  political 
societies.  The  facts  of  the  great  schism  and 
the  Conciliar  movement  drove  men  to  discuss 
the  character  and  constitution  of  the  Church, 
considered  as  a  community,  and  comparable 
to  States  and  kingdoms. 

(2)  This  tendency  was  furthered  by  the 
growth  of  national  States,  by  the  decay  of 
feudalism,  and  by  the  practical  abeyance 
of  the  Holy  Roman  Empire ;  although, 
even  after  Constance,  the  concordats  are 
not  between  Church  and  State,  but  between 
pope  and  king,  bishops  and  nobles,  &c.,  of 
France  or  other  countries. 


216    CHURCHES  IN  THE  MODERN  STATE 

(3)  Then  came  the  Reformation.  So  far 
as  this  was  poHtical  and  princely  it  made  no 
difference,  save  that  it  tilted  the  balance  of 
power  from  the  clerical  to  the  lay  officials. 
On  the  other  hand  in  the  Empire,  as  a 
whole,  religious  unity  was  destroyed,  and 
after  the  Religious  Peace  of  Augsburg  the 
Church  could  no  longer  be  identified  with 
the  Empire.  But  where  either  prince  or 
people  were  not  able  to  make  their  own 
religion  supreme  or  universal  within  the 
territorial  State,  the  conception  of  two  dis- 
tinct societies  tended  to  grow  up.  It  is 
not  really  in  the  thought  of  Calvin,  but 
the  organisation  of  the  Huguenots  was  very 
important  in  influencing  men's  minds.  It 
was  so  local,  so  compact,  so  distinct,  that 
it  helped  to  forward  the  idea  among  all 
persons  placed  as  they  were.  I  do  not 
think  that  Knox,  any  more  than  the  other 
reformers,  had  any  real  notion  of  this  dis- 
tinction. But  towards  the  end  of  Elizabeth's 
reign  it  is  certainly  to  be  found  in  Cartwright 
and  the  whole  English  Presbyterian  move- 
ment. Andrew  Melville  developed  it  in 
Scotland ;  and  Robert  Browne,  the  origi- 
nator of  the  Independents,  was  inspired  by 


APPENDIX  I  217 

this   notion  in  the   pamphlet   Reformation 
Withoict  Tarrying  for  Any. 

In  England  both  the  Laudian  and  the  Puri- 
tan party  were  mediasvalist ;  they  believed  in 
a  State  which  was  also  a  Church,  and  were 
essentially  theocratic.    However,  the  theory 
of  the  distinctness  of  the  two  societies  was 
beginning  to  be  asserted.     It  is  the  burden 
of  Thorndike's  Discoui'se  on  the  Right  of  the 
Church  in  a  Christian  State,  and  StillingHeet 
in    his   Irenicum   definitely  developed   the 
doctrine  in  the  appendix  on  Excommunica- 
tion.    The  perception  was  probably  due  to 
the  outburst  of  extreme  Erastianism  in  the 
Long  Parliament.     What  chiefly  developed 
the    contrary    notion    was    the    non-juring 
schism.     This  compelled  its  adherents,  and 
many  High  Churchmen  who  were  not  its 
adherents,   to  think  of  the  Church  as  the 
body  of  all  the  faithful  with  rights  and  powers 
inherent  and  unconnected  with  the  State. 
Union  with  Scotland  increased  this  tendency, 
for  there  was  thus  before  men's  eyes  the  spec- 
tacle of  two  different  estabhshed  Churches. 
Thus  Hoadly  gives  no  hint  of  any  other 
notion  than  the  old,  and  his  idea  of  toleration 
was   merely  a  comprehensive  Erastianism, 


218    CHURCHES  IN  THE  MODERN  STATE 

very  similar  to  certain  schemes  we  hear  of 
now.  Warburton,  on  the  other  hand,  de- 
velops explicitly  and  in  set  terms,  in  his 
Alliance  between  Church  and  State,  the  doc- 
trine that  the  two  are  independent  organisms 
consisting  of  the  same  individuals,  but  ex- 
isting for  different  ends,  each  to  be  treated 
as  a  corporate  personality.  His  theory 
comes  at  the  end,  not  at  the  beginning  of 
the  development  I  have  been  describing, 
and  I  cannot  help  feeling  it  would  have 
been  incomprehensible  to  men  such  as 
Gerard  of  York  or  St.  Thomas  of  Canter- 
bury. I  should  also  add  that  the  Jesuits, 
who  had  to  consider  the  question  of  the 
relations  of  Church  and  State  in  reference 
to  the  changed  conditions  of  a  divided 
Europe,  were  forward  in  developing  the 
notion  of  the  two  societies.  In  Gierke's 
view  they  were  the  first  to  develop  a  frankly 
secular  theory  of  the  State.  On  the  other 
hand,  royalists  like  Barclay  in  France,  who 
were  yet  strong  Catholics,  in  order  to  com- 
bat Bellarmine's  doctrine  of  the  indirect 
temporal  sovereignty  of  the  Pope,  were 
driven  to  be  equally  explicit  as  to  the  State 
being  a  societas  perfecta  no  less  than  the 


APPENDIX  I  219 

Church,  and  to  claim  that  the  two  societies 
were  in  a  sense  distinct. 

But  it  may  be  asked,  What  difference 
does  all  this  make  ?  Nobody  denies  that 
Henry  IV  went  to  Canossa,^  or  that 
Boniface  VIII  issued  the  Unam  iScmctam, 
or  that  Frederic  Barbarossa  held  the  papal 
stirrup,  or  that  his  grandson  was  deposed 
by  a  Church  council.  What  difference  can 
it  possibly  make  whether  we  assert  that 
these  incidents  were  the  result  of  conflicts 
between  two  separate  societies,  each  of 
them  a  State,  or  between  two  sets  of 
officials  in  one  and  the  same  society  ?  If 
what  has  been  said  is  well  founded,  we 
must  view  these  conflicts  as  of  the  nature 
of  civil  war.  Does  that  get  us  any  "forr- 
arder "  ?  If  I  were  a  scientific  historian  I 
should  use  great  and  desolate  words  about 
truth,  and  say  that  the  less  it  mattered  the 
better  was  it  worth  studying.  However, 
instead  of  this  I  shall  make  the  modest 
claim  that  such  view  helps  us  to  understand 
better  both  history  and  ourselves. 

(1)  It  explains  the  quick  drop  into  Eras- 

^  At  least  I  do  not.     I  understand  that  doubt  has 
been  thrown  even  on  this  event. 


220    CHURCHES  IN  THE  MODERN  STATE 

tianism  all  over  Europe  in  the  sixteenth 
century.  The  campaign  of  the  Reformers 
was  just  une  campagne  Idique.  They  were 
not  attempting  to  take  power  out  of  the 
Christian  society,  but  merely  out  of  its 
clerical  officials.  All  coercive  power  was 
to  be  rested  in  the  prince,  but  in  theory 
it  was  always  the  godly  prince,  "  most 
religious."  So  long  as  they  had  him  on 
their  side,  men  so  different  as  Laud  and 
Luther  felt  that  they  were  safe.  The  six- 
teenth century  witnessed  an  undoubted 
victory  of  the  secular  over  the  ecclesiastical 
power ;  but  it  was  not  for  the  secular 
power  as  a  society  distinct  from  the  Church, 
it  was  a  victory  for  the  temporal  authority 
within  the  one  society  which  can  be  called 
either  Church  or  State  according  to  the 
aspect  prominent  at  the  moment.  Erastus 
himself  declared  that  he  was  only  discussing 
the  case  of  a  State  which  tolerated  but  a 
single  religion  eanique  ver'avi,  a  statement 
which  shows  how  far  he  is  removed  from 
the  modern  form  of  the  system,  which 
derives  its  name  from  him. 

(2)  Many  problems  and  controversies  of 
modern  times  are  rendered  more  intelligible 


APPENDIX  I  221 

to  us,  if  we  adopt  the  view  which  I  suggest. 
Slowly,  but  only  very  slowly,  has  the  notion 
of  separate  societies  with  inherent  rights 
developed,  just  as  it  is  only  now  that  the 
doctrine  of  true  corporate  personality  is 
being  realised.  The  Kultur-kampf  was 
simply  due  to  the  incapacity  of  Bismarck 
to  realise  that  there  could  be  any  corporate 
life  with  inherent  powers  of  its  own,  un- 
willing to  accept  the  sic  volo,  sic  Jubeo  of 
the  State.  As  we  saw,  the  same  notion 
was  at  bottom  of  the  difficulties  in  the 
F7^ee  Chuixli  of  Scotland  Appeals.  Nor 
does  it  take  much  ingenuity  to  discover  it 
lurking  in  recent  judicial  pronouncements 
about  the  Deceased  Wife's  Sister  Act,  or 
about  the  controversy  between  Churches 
and  undenominationalism  in  regard  to 
education.^ 

^  "  Hinsichtlicli  der  Enstehung  der  Korporation  geht 
das  Corpus  Juris  durchweg  von  der  AufFassung  aus, 
dass  aus  der  natiirlichen  oder  gewollten  Vereini- 
gung  von  Individuen  zwar  das  thatsachliche  Substrat, 
niemals  jedoch  die  rechtliche  Existenz  einer  Verband- 
seinheit  hervorzugehen  vermag.  Vielmehr  stammt 
zunachst  die  publicistische  Verbandswesenheit  wahrend 
der  Staat  selbst  als  die  mit  und  iiber  den  Individuen 
gegebene    Allegemeinheit   keiner   Zuriickfiihrung   auf 


222    CHURCHES  IN  THE  MODERN  STATE 

(3)  The  unity  of  history  is  a  cant  phrase 
and  is  often  made  to  bear  a  burden  too 
heavy.  But  it  may  be  pointed  out  how 
strong  a  testimony  to  this  doctrine  is 
afforded  by  the  persistent  notion  of  the 
repubhc,  one  and  indivisible,  which  has 
come  down  to  the  modern  world  by  descent 
through  the  mediseval  papacy,  the  Christi- 

einen  besonderen  rechtlichen  Begriindungsakt  bedarf, 
auf  alien  tibrigen  Stufen  vom  Staat.     Staatliche  Verlei- 
himg  gilt  als  die  Quelle  tier  publicistischeti  Existenz  aiich 
solcher  Gemeinwesen,  welche  vor  ihrem  Eintritt  in  das 
romische  jus  jmblic7i7n  als  selbstandige  Staaten  bestanden 
haben ;  aus  staatlicher  Verleihung  fliesst  die  Korpora- 
tionsqualitJit   aiich  derjenigen  Verbande,   deren    that- 
sachliches   Dasein  freier  Vereinigung   verdankt  wird ; 
auf    staatliche    Verleihung    giiindet    sich    die    publie- 
istische  Verbandseinheit  auch  der  christlichen  Kirche, 
welche  selbst  ihren  Bestand   aus  gottlicher  Stiftung 
herleitet.      Ueberall   aber  verfahrt    hierbei   der   Staat 
hinsichtlich    des   rechtlichen   Elementes    der    engeren 
Verbandswesenheiten  wahrhaft  konstitutiv.     Alle  kor- 
perschaftliche  Existenz  erscheint  als  das  Werk  frei  schaff- 
ender  Gesetzgehung,  durch  welche  der  Staat^  sei  es  in 
der  Form  der  lex  specialis  fiir  das   einzelne   Gebilde, 
oder  sei  es  in  der  Form  genereller  Regeln  fiir  einen 
Komplex  gleichartiger  Verbande,  seine  eigne  Glieder- 
ung  setzt  und  ordnet.     Darum  bedarf  es  auch  in  keiner 
Weise  einer   Normirung   bestimmter   Voraussetzungen 
fiir  die  Errichtung  einer  Korporation."    (Gierke,  op.  cit., 
iii.  142-3.) 


APPENDIX   I 

anised  ancient  empire,  the  pagan  empire, 
whither  it  migrated  from  the  compact  all- 
absorbing  City-State.  Mr.  Carlyle,  in  the 
first  chapter  of  his  history  of  political  theory 
in  the  West,  was  able  to  show  us  how  the 
doctrines  of  Rousseau  anent  the  funda- 
mental equality  of  man  and  modern  democ- 
racy can  be  found  implicit  in  the  Roman 
jurists,  in  Cicero,  and  to  witness  to  a  change 
in  feeling  between  the  aristocratic  doctrine 
of  Aristotle  and  the  universalist  theories  of 
the  great  republic.  This  view  has  been 
encountered  in  our  own  day  by  the  revival 
of  aristocracy  proclaimed  by  Nietzsche,  and 
the  doctrines  of  the  fundamental  inequality 
of  men  based  partly  on  the  subjugation  of 
the  tropics,  partly  on  Darwinian  theories 
of  natural  selection  and  the  struggle  for 
existence.  The  doctrine,  however,  which  I 
have  been  considering  is  even  more  vener- 
able than  that  of  human  equality.  For  it 
goes  back,  with  hardly  a  break,  to  the 
omnicompetent  and  universally  penetrating 
supervision  of  Sparta  and  Athens.  It  is 
only  wlien  we  have  traced  it  right  back  to 
its  origin  that  we  see  its  inapplicability  to 
the  complex  life  of  a  modern  world-empire. 


224    CHURCHES  IN  THE  MODERN  STATE 

The  theory  of  sovereignty,  whether  pro- 
claimed by  John  Austin  or  Justinian,  or 
shouted  in  conflict  by  Pope  Innocent  or 
Thomas  Hobbes,  is  in  reahty  no  more  than 
a  venerable  superstition.  It  is  true  to  the 
facts  only  in  a  cosy,  small  and  compact  State, 
although  by  a  certain  amount  of  strained 
language  and  the  use  of  the  maxim,  "  what- 
ever the  sovereign  permits  he  commands," 
it  can  be  made  not  logically  untenable  for 
any  conditions  of  stable  civilisation.  As  a 
fact  it  is  as  a  series  of  groups  that  our  social 
life  presents  itself,  all  having  some  of  the 
qualities  of  public  law  and  most  of  them 
showing  clear  signs  of  a  life  of  their  own, 
inherent  and  not  derived  from  the  con- 
cession of  the  State. 

The  State  may  recognise  and  guarantee 
(and  demand  marks  for  so  doing)  the  life 
of  these  societies — the  family,  the  club,  the 
union,  the  college,  the  Church ;  but  it 
no  more  creates  that  life  than  it  creates 
the  individual,  though  it  orders  his  birth 
to  be  registered.  It  is  the  problem  of  the 
future,  as  Mr.  A.  L.  Smith  showed  at 
the  close  of  his  lecture  on  Maitland,  to 
secure    from    legal    theory    the    adequate 


APPENDIX  I  225 

recognition  of  these  facts,  and  in  regard  to 
religion  the  problem  is  raised  in  an  acute 
form,  and  it  will  be  the  service  of  multiplied 
sectarianism  to  a  true,  that  is  a  realistic 
political,  philosophy  if  it  forces  the  recog- 
nition of  the  truth  that  smaller  societies 
live  by  their  own  life,  and  exercise  real 
authority  over  their  members.  The  struggle 
for  liberty  nowadays  is  the  struggle  to 
secure  that  recognition.  What  I  have 
tried  to  indicate  is  the  causes  of  that 
struggle  being  arduous.  The  atmosphere 
in  which  law  has  lived  for  more  than  one 
millennium  (apart  from  the  Teutonic  and 
feudal  influences)  has  been  all  in  favour  of 
the  doctrine  which  recognises  two  and  only 
two  social  entities,  the  individual  on  the 
one  hand  and  the  State  on  the  other.  In 
that  atmosphere  law  not  only  gets  out  of 
relation  to  living  facts  and  precipitates 
struggles  like  the  Kultur-kampf  and  absur- 
dities like  those  involved  in  the  case  of  the 
Fixe  Church  of  Scotland,  but  political 
philosophy,  which  is  always  largely  de- 
pendent on  law,  oscillates  between  an 
unreal  individualism  and  a  wildly  impossible 
socialistic  ideal.     The  facts  of  life  are  hostile 

p 


226    CHURCHES  IN  THE  MODERN  STATE 

to  both,  but  injury,  both  practical  and 
theoretical,  is  always  done  by  trying  to 
ignore  facts,  especially  facts  so  tremendous 
as  the  complex  group-life  which  is  to  most 
of  us  more  than  the  State.  What  I  have 
tried  to  show  is  that  this  error  is  not  of 
modern  origin,  that  it  did  not  come  into 
our  world  at  the  Renaissance,  though  it 
may  have  been  accentuated  then,  but  that 
it  is  part  of  the  damnosa  hereditas  from  the 
Civil  Law  of  the  Roman  Empire,  of  which 
Stubbs  once  said  that,  whenever  it  had  been 
dominant,  it  destroyed  any  real  idea  of 
civil  and  religious  freedom.^ 

^  I  do  not  claim  to  have  proved  the  view  here  set 
forth ;  still  less  to  have  set  out  the  whole  evidence. 
I  am  not  certain  of  any  hard  and  fast  categories  in  the 
topic.  But  I  would  ask  the  student  to  study  the 
ecclesiastico-political  controversies  throughout  their 
course,  from  the  Libelli  de  Life  down  to  the  modern 
newspaper  and  platform  speaker,  and  to  ask  himself 
whether  the  view  here  put  forward  does  not  fit  more 
readily  into  the  words  and  modes  of  thought  of 
thinkers  on  all  sides  than  that  which  I  have  combated. 


APPENDIX  II 

THREE  CAMBRIDGE  HISTORIANS: 
CREIGHTON,  MAITLAND,  AND  ACTON 

AND    SOME    OF    THEIR    SIGNIFICANCE    IN    REGARD    TO 

THE    PROBLEM 

It  was  the  fortune  of  the  writer  to  be 
brought  into  intimate  relations  with  three 
of  the  greatest  minds  which  were  occupied 
about  historical  matters  during  the  nine- 
teenth century.  Now  that  the  youngest 
of  them  has  passed  away  it  may  not  be 
uninteresting  to  my  readers  if  I  make  some 
attempt  to  compare  three  men,  so  original 
and  so  different,  who  among  them  have 
done  so  much  for  the  cause  of  the  historical 
inquiry  and  the  yet  more  valuable  habit 
of  historical  thinking  in  this  country.  No 
attempt  will  be  made  to  appraise  their 
whole  work,  for  it  would  be  quite  be- 
yond the  power  of  the  writer  and  in- 
deed an  impertinence.      Probably,  indeed, 

227 


228    CHURCHES  IN  THE  MODERN  STATE 

the  time  has  not  yet  come  when  such 
appraisement  can  be  made.  Maitland's 
theories,  in  particular,  are  many  of  them 
hypothetical,  and  time  can  only  show 
whether  his  conjectures  will  be  generally 
accepted  by  scholars ;  although,  of  course, 
a  great  mass  of  his  work  has  now  become 
a  part  of  our  common  heritage.  But  while 
the  personal  memory  of  these  great  men 
is  still  fresh,  it  may  be  possible  to  gather 
together  certain  characteristic  details  which 
will  serve  to  set  them  in  stronger  relief,  and 
to  exhibit  their  relations  to  one  another, 
and  also  certain  ways  in  which  all  three 
have  influenced  and  will  influence  in  the 
future  the  general  conception  of  the  Church 
and  its  place  in  society.  Perhaps  their  unity 
is  more  apparent  in  this  way  than  in  any 
other,  except  that  all  three  were  born 
students,  with  the  enthusiasm  of  know- 
ledge burning  within  them.  Yet  it  was 
not  knowledge  (even  in  Maitland's  case) 
entirely  apart  from  life,  divorced  from  all 
practical  affairs.  For  all  three  were  far 
more  than  mere  scholars,  and  at  all  times 
were  a  little  irritating  to  pedants. 

At  first  sight  the  differences  between  the 


APPENDIX  II  229 

three  men  are  far  more  striking  than  their 
resemblance.  Creighton,  incomparably  the 
greatest  man  of  the  three,  was  a  country 
clergyman,  a  don,  an  ecclesiastic,  and, 
finally,  one  of  the  most  successful  bishops 
of  modern  times.  Maitland,  though  a 
professor,  was  never  in  the  old  sense  a 
college  don,  was  by  profession  a  barrister, 
and  in  opinions  an  agnostic  with  a  strongly 
anti-clerical  bias.  Acton  was  half  a  German, 
a  journalist,  a  courtier,  a  squire,  and,  above 
all  things,  a  devoted  Roman  Catholic,  with 
an  intense  fear  of  Ultramontanism.  If 
Creighton  was  the  greatest  man,  Maitland 
was  equally  the  greatest  historian,  and 
Acton,  by  general  judgment,  the  most 
widely  erudite.  Again,  though  all  three 
were  professors  at  Cambridge,  one  of  them 
was  trained  at  Oxford,  and  preserved  all 
his  life  traces  of  his  Oxford  manner,  al- 
though he  sent  his  sons  to  Cambridge ; 
Maitland  was  emphatically  Cantabridgian 
in  sentiment  and  outlook,  and  rejoiced  to 
call  himself  a  disciple  of  Sidgwick,  perhaps 
the  most  characteristically  Cambridge  mind 
of  the  nineteenth  century,  if  we  except  his 
brother-in-law,  IMr.  Arthur  Balfour;  while 


230    CHURCHES  IN  THE  MODERN  STATE 

Acton's  university  training  took  place  at 
Munich  under  Dollinger,  and  developed  to 
a  degree  which  minimised  his  influence  the 
spirit  of  critical  detachment  from  groups 
and  parties.  Yet  all  three  were  alike  not 
merely  in  their  intellectual  ideal,  their  scorn 
of  emotion  apart  from  principle,  and  their 
passion  for  justice,  but  in  their  strong 
belief  in  liberty  and  their  perception  of  the 
hollowness  of  much  that  goes  by  the  name 
nowadays.  It  is  this  faith  in  freedom 
which  is  in  different  forms  the  characteristic 
of  them  all,  and  led  to  each  of  them  making 
contributions  towards  the  solution  of  one 
of  the  chief  problems  of  our  day — the  rela- 
tion between  the  modern  omnicompetent 
State  and  the  rights  of  smaller  societies  to 
exist  and  to  govern  themselves  within  it. 
All  three,  though  two  of  them  without 
particularly  desiring  it,  have  helped,  and 
will  help  still  more  in  the  future,  towards 
a  true  conception  of  the  place  of  our 
Church  in  regard  to  Christendom  at  large, 
and  also  in  relation  to  modern  democracy. 
In  each  case  this  result  was  assisted  by  the 
special  study  of  the  scholar,  and  each  case 
affords,  therefore,  evidence  of  the  value  for 


APPENDIX  II  231 

practical  action,  of  speculations  and  re- 
search, apparently  most  remote  and  even 
antiquarian. 

I. — Mandell  Creighton 

Let  us  take  them  in  order  of  their  going, 
and  try  to  estimate  their  special  distinc- 
tions as  teachers  and  thinkers.  Of  the 
many-sided  activity  of  Mandell  Creighton 
it  would  obviously  be  impossible  to  speak 
within  the  limits  of  a  short  article.  Nor 
is  it  necessary.  For  his  whole  personality 
is  revealed  to  us  not  only  in  his  books,  but 
in  those  incomparable  letters  which  JMrs. 
Creighton  has  published  in  what  is  one  of 
the  half-dozen  best  biographies  in  the  lan- 
guage. But  one  or  two  points  may  be 
noted  about  his  teaching.  As  a  lecturer, 
and  still  more  as  private  tutor,  the  main 
cachet  of  Creighton's  teaching  was  the 
constant  stimulus  he  gave  to  thought  and 
activity.  What  struck  us  most  was  the 
wide  range  of  his  interests,  his  sense  of  the 
absolute  importance  of  knowledge,  and,  as 
I  once  heard  him  say,  "  the  appalling  levity  " 
with  which  the  members  of  the  so-called 


232    CHURCHES  IN  THE  MODERN  STATE 

educated  classes  deliver  opinions  on  every 
conceivable  topic.  It  would  be  truer  to  say 
that  he  tried  to  make  men  discipline  them- 
selves than  that  he  endeavoured  himself  to 
discipline  them.  Alike  in  religion,  politics, 
learning,  he  always  respected  and  believed 
in  the  individual.  His  great  object,  indeed, 
was  to  make  the  individual  believe  in  him- 
self; not,  of  course,  in  the  sense  of  being 
arrogant  or  self-conscious.  No  one  could 
be  severer  to  anything  of  that  sort.  But 
he  tried  to  make  his  pupils  see  that  there 
were  tasks  worthy  of  their  attempting ;  that 
they  ought  not  to  be  afraid  of  them,  and 
that  they  must  be  makers  of  their  own  lives. 
One  of  the  first  lessons  we  learnt  from  him 
was  the  absurdity  of  worshipping  "  the 
idols  of  the  market-place  "  and  the  iniquity 
of  satisfying  ourselves  with  plausible  hypoc- 
risies and  conventional  fallacies.  No  one 
exposed  more  unsparingly  the  superficial 
sentimentality  which  often  mistakes  itself 
for  culture.  In  the  strict  sense  Creighton 
was  not  a  great  preacher;  yet  many  an 
undergraduate  has  learnt  through  him  to 
see  that  culture  means  something  different 
from  the  catchword  of  a  literary  and  artistic 


APPENDIX  II  233 

coterie,  that  intellectual  riches  need  as  much 
work  to  win  as  material,  and  that,  as  he 
said  once  in  a  sermon,  "  a  certain  self- 
consciousness  that  serves  for  culture"  is  not 
the  sufficient  ideal  of  a  University  life. 

Of  the  three  men,  Creighton  was  un- 
doubtedly the  greatest  teacher  of  youth, 
and  did  much  to  save  from  being  mere 
dilettanti  the  interested  "  literary  "  youths 
who  abound  at  the  Universities.  The  fact 
is,  that  intellectual  sloppiness  is  a  far  greater 
danger  than  mere  athleticism,  of  the  evils 
of  which  one  hears  so  much. 

After  all,  athletics  in  themselves  are 
good,  and  even  those  who  are  exclusively 
devoted  to  them  are  often  thereby  saved 
from  worse  things.  But  mere  playing  with 
intellectual  interests,  which  is  the  bane  of 
the  clever  undergraduate,  is  almost  unmiti- 
gated evil,  and  yet  it  seems  an  evil  far 
less  realised  by  those  who  ought  to  stop 
it.  This,  probably,  was  at  the  bottom  of 
the  method  of  lecturing,  which  was  a  little 
disjointed,  but  eminently  suggestive.  He 
did  not,  like  Acton  and  JNIaitland,  deliver, 
as  professor,  lectures  which  were  finished 
compositions  and  could  be  published  as  they 


234    CHURCHES  IN  THE  MODERN  STATE 

stood.  Rather,  his  lectures  were  interesting 
monologues,  in  which  new  ideas  and  fresh 
books  were  constantly  being  brought  to  the 
mind. 

It  was  by  his  interest  in  ideas  and  extra- 
ordinary fertility  of  mind  that  he  surpassed 
the  other  two  men.  There  was  no  topic 
to  which  he  did  not  give  a  new  aspect,  no 
subject  into  which  he  did  not  seem  to  see 
deeper  than  anyone  else,  no  material  which 
he  did  not  illuminate,  even  though  he  might 
have  no  new  fact  to  tell. 

The  amazing  value  of  the  last  volume 
of  his  great  work  on  the  Papacy  has  never 
been  adequately  recognised.  Among  the 
myriad  books  which  deal  with  the  Lutheran 
outburst,  we  doubt  if  there  is  one  which  at 
all  approaches  Creighton's  in  the  way  it 
envisages  the  movement.  For  it  exhibits 
Luther  neither  as  a  hero  nor  a  scoundrel, 
not  even  as  a  great  religious  genius,  but  as 
a  problem  worrying  himself  and  worrying 
statesmen,  but  for  them,  of  course,  only 
one  of  the  many  sources  of  perplexity  in- 
herent in  la  haute  politique.  That  is  the 
real  distinction  of  the  book — that  it  brings 
us  back  into  the  world  of  diplomacy  and 


APPENDIX  II  235 

ecclesiastical  manoeuvring,  in  which  Luther 
was  simply  one  more  of  the  many  nuisances 
of  the  working  politician's  life.  Even  when 
they  relate  the  other  events  in  detail,  most 
historians  seem  unable  to  prevent  the  Refor- 
mation movement  looming  as  large  in  their 
views  as  it  does  in  the  light  of  its  world-his- 
torical importance.  The  difference  is  in  tone 
rather  than  in  statement,  but  it  is  very  real, 
and  no  one  else  reproduces  the  atmosphere 
of  European  intrigue  and  Papal  statesman- 
ship with  the  reality  and  ease  of  Creighton. 
In  a  way  which  is  almost  unique  he  helps 
us  to  re-think  the  thoughts  of  the  Papal 
Court  or  the  Imperial  chancellors. 

From  the  point  of  view  of  this  paper, 
however,  it  is  another  point  on  which  I 
want  to  insist — Creighton's  conception  of 
the  Church  of  England.  His  most  pro- 
found research  lay  in  a  period  scarcely 
known  to  Englishmen,  yet  worthier  of 
study  than  many  of  the  more  picturesque 
epochs  of  Church  history — the  period  of 
the  Conciliar  movement — roughly  speaking, 
1378-1450.  The  interest  of  this  period  does 
not  lie  in  the  practical  success  of  the  move- 
ment, which  was  little  or  none,  but  in  the 


236    CHURCHES  IN  THE  MODERN  STATE 

ideas  which  animated  it.  Broadly  speaking, 
it  may  be  said  that  those  ideas,  and  those 
ideas  alone,  form  the  7^aison  d'etre  of  the 
Church  of  England,  as  against  Ultramon- 
tanism  on  the  one  hand  and  individualistic 
Protestant  sectarianism  on  the  other.  The 
claim  of  Rome  that  we  are  but  a  sect  among 
many  other  sects  would  be  justified  if  the 
Conciliar  movement  was  based  on  a  funda- 
mental falsehood.  Roughly  speaking,  the 
ideals  of  Gerson  and  his  congeners  were 
those  of  a  reformed  Episcopal  communion, 
with  nationalism  recognised  in  the  Church  as 
a  real  thing,  with  a  constitution  limiting  the 
dangers  of  centralised  bureaucracy  (the  real 
evil  of  Rome  far  more  than  mere  monarchical 
government) — in  a  word,  with  federalism  in 
the  Church  preserving  the  unity  of  the  whole 
while  securing  the  independence  of  the  parts. 
The  failure  of  that  scheme  is  one  of  the 
most  tragic  facts  in  the  history  of  the  world, 
and  was  as  direct  a  cause  of  the  Reformation 
as  the  despotism  of  Louis  XIV  was  the 
real  origin  of  the  great  Revolution.  Now, 
Creighton's  task  in  later  years  was  to  apply 
this  truth  to  modern  problems.  There  arose 
in  the  Church  a  party  small,  for  the  most 


APPENDIX  II  2S7 

part  unlearned,  but  intensely  enthusiastic, 
whose  ideals  were  purely  those  of  Latin 
Christianity,  and  whose  conception  of  the 
Church  was  in  the  last  resort  ultramontane. 

Creighton  saw  earlier  than  most  people 
that  the  real  question  at  issue  was  not 
whether  the  Church  of  England  had  done 
this  or  that  in  the  past,  not  even  whether 
it  had  the  right  to  do  this  and  that,  but 
whether  there  was  a  Church  of  England 
at  all. 

The  theory  of  what  is  called  by  some 
Catholicism  (by  which  is  meant  that  the 
Church  is  outwardly  a  unitary  and  omni- 
competent state)  ends,  if  it  be  pushed  to  its 
logical  extreme,  in  the  tyranny  of  the  central 
power,  and  the  complete  absorption  of  all 
smaller  units — its  logical  issue  is  the  ultra- 
montane theory  of  Episcopal  jurisdiction, 
which  it  makes  merely  and  solely  a  delega- 
tion of  the  Papacy,  and  it  is  not  really 
necessary  for  this  theory  that  the  govern- 
ment should  be  monarchical ;  a  democratic 
despotism  would  be  just  as  bad.  The  real 
point  is  whether  National  Churches  have 
any  real  existence.  Are  they  as  much  the 
expression  of  God's  will  as  individual  per- 


238    CHURCHES  IN  THE  MODERN  STATE 

sons?  Have  they  a  distinct  and  peculiar 
mission  to  perform,  not  apart  from  but  in 
unison  with  the  general  body  ?  Creighton 
strongly  maintained  that  they  had  inherent 
rights,  powers,  and  life  of  their  own ;  and 
equally  strongly  maintained  that  the  Church 
of  England  in  laying  down  its  rules  was 
guided  by  "an  appeal  to  sound  learning." 
Now,  this  was  eminently  the  cachet  of  the 
Conciliar  movement,  which  represented  the 
culminating  point  of  University  influence  in 
the  Middle  Ages.  It  can,  I  think,  scarcely 
be  ^denied  that  Creighton's  advocacy  of  the 
rights  of  nationalism  within  the  Church, 
and  his  equally  strong  repudiation  of  mere 
individualism,  were,  if  not  a  result  of  his 
historical  investigations,  at  any  rate  enor- 
mously increased  in  depth  and  weight  of 
advocacy  by  his  very  peculiar  knowledge 
of  that  half-forgotten  movement. 

Here,  however,  as  elsewhere,  his  respect 
for  liberty  preserved  him  from  mistakes. 
Convinced  of  the  truth  of  his  main  prin- 
ciples, imbued  as  he  was  perhaps  more 
strongly  than  any  thinker  since  Hooker 
with  the  genius  of  the  Church  of  England, 
despising  the  frivolity  and  ignorance  with 


APPENDIX  II  239 

which  the  Latinisation  of  the  Church  was 
being  pushed  forward,  and  deeply  opposed 
to  the  legahst  conception  of  reHgion  in 
general,  and  to  "  canonist "  Christianity  in 
particular,  Creighton's  strong  hand  alone 
prevented  an  outburst  of  the  persecuting 
spirit  which  would  have  entirely  defeated 
its  own  object,  and  would  have  left  the 
Church  shorn  of  some  of  its  best  elements. 
He  felt  that  the  same  arguments  which 
justified  religious  liberty,  in  spite  of  all  the 
dangers  of  competing  creeds  and  the  emer- 
gence of  every  form  of  unbelief  into  articu- 
late prominence,  would  also  justify  the 
attempt  to  leave  dangerous  tendencies  to 
work  themselves  out  rather  than  by  re- 
pression to  leave  the  evil  smouldering. 
Episcopal  authority  stood  very  high  to  his 
mind,  but  he  was  not  prepared  to  support  it 
by  coercion,  if  men  (committing  as  he  deemed 
a  sin)  refused  to  bow  to  that  authority. 
His  cachet  as  a  teacher,  as  a  historian,  and  as 
a  bishop,  was  just  this — that  no  one  ever  had 
a  stronger  sense  of  the  value  of  organised 
government  and  the  need  of  authority  alike 
in  Church  and  State,  combined  with  a 
respect   for    individuality   and   a   belief  in 


240    CHURCHES  IN  THE  MODERN  STATE 

freedom  which  were  of  the  essence  of  the 
man.  This,  more  than  anything  else,  made 
him  a  representative  of  the  Enghsh  Church 
at  its  best,  and  that  is  the  Enghsh  char- 
acter at  its  best.  And  all  this  while  he  pre- 
served a  faculty  for  detailed  thought  and 
criticism  which  made  ignorant  persons  com- 
plain that  he  was  flippant  and  censorious. 
It  was  merely  "the  Englishman's  privilege 
of  grumbling  "  as  exercised  by  a  very  highly 
trained  intellect  in  an  intelligent  and  ever 
alert  observer.  For  while  Creighton  saw 
and  lamented  the  defects  of  his  countrymen, 
as  when  he  said  that  "Enghshmen  above 
all  men  refuse  to  think  things  out,"  and 
that  "  most  Englishmen  have  no  mind  at 
all,  but  only  hereditary  obstinacy,"  he  owed 
his  powers  to  his  universal  sympathy  with 
them,  and  to  being  himself  emphatically  an 
Englishman,  not,  like  Matthew  Arnold,  a 
mere  "  kid-gloved  Jeremiah." 

II. — Frederick  William  Maitland 

A  very  different  man  from  Creighton  was 
Maitland,  except  in  his  many-sided  activity. 
For  he  was  no  mere  recluse  interested  in 


APPENDIX  II  241 

nothing  but  the  dry  bones  of  legal  history, 
but  one  of  the  foremost  men  in  academic 
life.  For  some  years  he  sat  on  the  Council 
of  the  Senate — and  Maitland  was  not  a 
man  who  could  be  a  member  of  any  body 
without  influencing  it.  With  Downing  he 
had  no  connection  until  the  days  of  his 
professoriate,  but  he  took  a  keen  interest 
in  the  concerns  of  the  college,  even  down 
to  the  fortunes  of  its  boat.  At  home,  as  no 
one  except  Stubbs  and,  perhaps,  Mr.  Round 
have  ever  been,  in  the  "  diplomatic "  and 
other  records  of  early  English  life,  he  was  an 
admirer  of  Ibsen,  of  Meredith,  of  Anatole 
France,  and  an  admirable  after-dinner 
speaker.  As  an  historian  he  was  emi- 
nently a  "  path-finder,"  and  has  probably 
done  more  to  revolutionise  our  ideas  of 
English  origins  than  any  one,  except 
Stubbs  and,  possibly,  Liebermann.  His 
interests  were  precisely  opposite  to  those 
of  Creighton.  To  the  latter  the  personal 
side  of  history  strongly  appealed,  and  while 
there  is  no  trace  in  either  writer  of  any 
striving  after  what  is  picturesque  and 
dramatic,  it  is  evident  that  the  analysis 
of  character  takes  a  foremost  place  in  the 

Q 


242    CHURCHES  IN  THE  MODERN  STATE 

method  of  Creighton,  while  it  is  the  de- 
velopment of  institutions  that  normally- 
interests  Maitland.  The  latter  cares  for 
the  structure  of  civilised  life,  its  juridical 
skeleton  and  economic  basis ;  the  former 
for  the  men  who  work  upon  the  structure, 
for  the  manipulators  of  institutions,  for  the 
diplomatist  and  the  statesman.  Not  that 
Maitland  is  ever  dry,  or  that  Creighton  is 
always  vivid.  Both  are  alike  in  this,  that 
they  enlarged  the  horizons  of  all  culti- 
vated Englishmen.  Creighton's  interest 
was  primarily  European,  and  even  Italian ; 
his  book,  incidentally,  is  a  better  history 
of  the  Renaissance  than  the  pretentious 
volubility  of  Symonds.  It  is  the  theatre 
of  European  statecraft  at  the  period  of 
transition  from  the  dream  of  mediaeval 
unity  to  the  reality  of  modern  nationalism 
that  Creighton  loved  to  gaze  upon,  and  so 
to  raise  his  readers  above  the  narrow  and 
insular  view  of  history  which  is  characteristic 
of  so  many  Englishmen. 

Maitland  had  a  similar  feeling,  in  spite  of 
the  fact  that  his  work  lay  almost  exclusively 
in  the  origins  of  English  legal  and  consti- 
tutional life.     I  heard  him  criticise  a  scheme 


APPENDIX  II  243 

for  historical  teaching  on  the  ground  that  it 
was  "  far  too  EngHsh."  He  desired  that 
youths  should  be  trained  to  see  history 
from  a  standpoint  not  of  their  own  nation, 
which  is  comparatively  easy  to  attain,  but 
of  the  best  science  of  Germany,  and  per- 
haps even  more  of  France.  For  although 
Maitland's  studies  were  emphatically  directed 
to  find  by  "  slow  degrees  the  thoughts  of 
our  forefathers,"  "  to  think  once  more  their 
common  thoughts  about  common  things," 
he  knew  very  well  that  this  would  not  be 
achieved  without  an  endeavour  to  correlate 
the  development  of  this  country  to  that  of 
others  in  Western  Europe,  insisting  not 
only  on  the  differences,  which  are  super- 
ficial, but  on  the  resemblances,  which,  at 
least  up  to  the  fourteenth  century,  are 
essential  and  profound.  Creighton  and 
Maitland  and  Acton  were  in  fact  at  work 
on  one  problem — the  development  of  the 
modern  Western  mind  and  its  relation  to 
the  sources  from  which  it  had  proceeded. 
Only  Creighton  envisaged  the  problem 
from  the  standpoint  of  the  statesman- 
ecclesiastic,  JMaitland  from  that  of  a  trained 
lawyer,  and  Acton  from  that  of  a  political 


244    CHURCHES  IN  THE  MODERN  STATE 

and  ethical  philosopher.     All  were  alike  in 
that  their  method  was  eminently  that  of  his- 
torically-minded thinkers  ;  but  they  differed 
in  standpoint,  in  opinion,  and  to  some  extent 
in  the  material  each  made  his  own.     Mait- 
land — to  return  to  him — more  than  anyone 
else  is  responsible   for  the   annihilation  of 
what   may  be  called  the  lawyer's  view  of 
history,  which  dates  everything  from  the 
thirteenth  century,  and  regards  the  reign  of 
Henry  II  as  equally  with  that  of  Henry  I 
in  legal  twilight.     Even   before   M  ait  land 
it   had   dawned   upon   a  few   legal   minds 
that  there  were  great  men  before  Stephen 
Langton,    and   that    a    theory   of   English 
land-law  and  the  courts  which  went  little 
further  back  than  Edward  I  was  not  likely 
to  be  adequate  (except,  of  course,  for  the 
practice  of  the  courts).     Just  as  it  needed 
Freeman,  with  all  his  faults,  to  induce  the 
ordinary  historical   reader   to   believe   that 
anything   really  happened  before   1066,  so 
it  needed  Maitland,  with  all  his  genius,  to 
break    down    the    even    more    intolerable 
tyranny  of  insular  jurists,  and  to  limit  the 
empire  of  Coke.     There  are  few  passages 
more  illuminating,  not  only  for  the  English 


APPENDIX  II  245 

student,  but  for  all  those  interested  in  the 
growth  of  mediseval  institutions  on  the 
ruins  of  the  Roman  Empire,  than  the  few 
introductory  pages  on  the  nature  of  feudal- 
ism in  the  History  of  English  Laxv  (vol.  i. 
pp.  66-73).  The  writer,  who  heard  this,  or 
most  of  it,  delivered  as  a  lecture  in  that 
small  room  at  Downing  on  a  dark  autumn 
afternoon  to  a  yet  smaller  audience,  is  not 
likely  to  forget  the  impression  then  made. 

This  brings  me  to  one  point  about  JMait- 
land  which  might  be  otherwise  neglected — 
his  characteristics  as  a  lecturer.    If  the  main 
impression  given  by  Creighton  was  that  of 
intellectual  versatility  and  alertness,  of  the 
duty  of  thinking  things  out,  the  main  im- 
pression of  Maitland  was  that  of  the  para- 
mount importance  of  what  he  was  talking 
about.     His  style  was  and  is  like  that  of 
no  one  else,  compact  of  extraordinary  Biblical 
and  other   archaisms,  intensely  individual, 
vivid  and  striking,  packed  with  allusions, 
sparkling  with  humour,  and  suggesting  even 
more  than  it  stated — the  very  opposite  of 
the  matter-of-fact,  unadorned  narrative  of 
Creighton  as  an  historian.     It  was  a  style 
like  the    portrait    of   INIonna   Lisa,  which 


246    CHURCHES  IN  THE  MODERN  STATE 

all  the  thoughts  and  experiences  of  the 
world  seemed  to  have  moulded,  and  it  had, 
whether  delivered  or  written,  an  extra- 
ordinary quality,  almost  unique  among  his- 
torians— that  of  reproducing  the  atmosphere 
of  the  time  he  was  discussing.  It  was  not 
descriptive  or  picturesque  in  the  ordinary 
sense.  There  was  neither  the  hardness  nor 
the  brilliancy,  still  less  the  partisanship,  of 
Macaulay  in  Maitland's  mind.  But  just  as 
he  left  his  hearers  under  the  impression 
that  there  was  only  one  thing  worth  living 
for — the  study  of  twelfth-century  law — as 
he  discoursed  in  his  vibrating  and  nervous 
tones  (for  he  was  nervous  to  the  last),  so 
his  writing  serves  to  bring  before  us  the 
mental  atmosphere  of  the  men  he  talks  of 
with  a  reality  quite  unlike  that  of  the  narra- 
tive historian  and  quite  different  from  the 
memoir-writer.  Perhaps  it  was  best  ex- 
pressed once  in  the  phrase  of  Mr.  Andrew 
Lang,  that  he  turned  flashes  of  electric  light 
on  his  subject. 

Maitland,  in  fact,  is  to  the  ordinary  his- 
torian what  Mr.  Sargent  is  to  the  ordinary 
portrait  painter.  The  genius  for  life  is 
perhaps  the  best  name  for  the  characteristic 


APPENDIX  II  247 

which  makes  them  both  so  different  from 
other  men,  which  marks  their  quality  and 
limits  as  well  as  expands  their  powers. 
Stubbs  is  a  great  historian,  but  he  tells  us 
of  a  dog  that  remains  dead ;  Froude  is  a 
great  dramatist,  but  he  delights  us  with 
the  tragedy  of  personality.  Macaulay  paints 
pictures.  Maitland  shows  us  life,  and  not 
the  lives  of  statesmen  merely,  but  of  human 
beings.  Other  men  know  and  we  learn 
from  them.  Maitland  saw,  and  we  learn 
more  from  him ;  only  what  he  sees  is  not 
the  dress,  the  buildings,  and  the  accessories 
of  life,  but  the  inner  world  of  thought 
and  feeling,  "  the  common  thoughts  of  our 
fathers  about  common  things."  This  is 
what  I  mean  by  likening  him  to  Sargent, 
from  whose  pictures  the  genius  of  the 
fevered  world  he  portrays  will  look  out 
for  ever,  for  a  new  Maitland  to  intrepret 
in  an  age  yet  to  come. 

Although  Maitland  was,  as  no  one  is 
ignorant,  not  merely  a  non-Christian,  but 
an  anti-clerical,  yet  few  men  have  done 
more  to  elucidate  Church  history.  If  we 
cannot  say  of  him  as  Newman  said  of 
Gibbon,  that  he  is  our  greatest  ecclesias- 


248    CHURCHES  IN  THE  MODERN  STATE 

tical   historian,   it   remains   that   on   many 
important    matters,   such    as   the    aims    of 
Henry  II  in  regard  to  criminous  clerks,  and 
the  nature  of  EngHsh  ecclesiastical  jurispru- 
dence  in   the   Middle  Ages,  he  has  done 
more    than    anyone    else    to    clear    men's 
thoughts.      Few  now  are  likely  to  repeat 
the  assertion,  dear  to  the  Tractarianism  of 
an  obsolete  type,  that  the  English  Church 
only   accepted   the   canonical   system  "  by 
courtesy,"  and  exercised  powers  not  claimed 
in    France    or    Aragon.      Nor    must    the 
intellectual   ancestry  of  Maitland   be   for- 
gotten.    A  brief  glance  at  his  grandfather's 
writings — The  Dark  Ages,  for  instance — 
will  show  the  intelligent  observer  the  true 
source  of  much  of  his  manner,  and  even 
a  little  of  his  method.     For  S.  R.  Maitland 
had  a  gift  of  historical  imagination  which, 
even  by  the  side  of  his  grandson's  genius, 
is  by  no  means  to  be  despised,  and  ought 
never  to  be  ignored  in  an  estimate  of  the 
man.      Maitland's    main    contribution    to 
the  Church  was,  however,  in  this  writer's 
opinion,  not  in  any  of  his  special  studies, 
but  is  to  be  found  in  the  Preface  of  Gierke, 
which  he  prefixed  to  his  translation.     That 


APPENDIX  II  249 

book,  the  Deutsche  Genossenscliaftsrecht, 
he  once  declared  to  me  to  be  the  greatest 
book  he  had  ever  read  ;  and  it  is  possibly 
through  Gierke's  influence  more  than  any- 
other,  that  Maitland  came  to  demolish — no 
weaker  term  can  be  used — the  old  con- 
ception of  the  position  of  corporate  bodies 
in  the  State.  That  conception  makes  all 
clubs,  associations,  communities,  religious, 
political,  or  economic,  the  mere  creatures 
of  the  omnicompetent  modern  State 
(which  inherits  its  claims  from  Imperial 
Rome),  with  no  right  to  exist,  except  on 
concession,  express  or  implied,  and  no 
powers  of  action  beyond  what  the  State 
(in  theory)  delegates  to  them.  This  theory 
(which  if  it  does  not  depend  on,  at  least 
is  connected  with  the  canonist  doctrine  of 
Innocent  IV,  that  the  corporation  is  a 
pei'sona  Jicta)  it  has  been  the  work  of  the 
German  school  of  "  realists  "  to  overthrow. 
Gierke,  and  men  like  him,  looking  back 
from  Roman  to  Teutonic  origins,  and 
looking  out  into  the  facts  of  the  world 
to-day,  have  seen  the  absurd  chaos  into 
which  this  theory  would  land  us,  and  its 
utter  falsity  to   life  as  actually  lived,  for 


250    CHURCHES  IN  THE  MODERN  STATE 

it  makes  the  world  consist  of  a  mass  of 
self-existing   individuals  on  the  one   hand 
and     an     absolute     State    on   the    other; 
whereas  it   is   perfectly  plain   to   anybody 
who   truly   sees   the   world   that    the    real 
world  is  composed  of  several  communities, 
large  and  small,  and  that  a  community  is 
something    more    than    the    sum    of    the 
persons  composing  it — in   other  words,  it 
has  a  real  personality,  not  a  fictitious  one. 
This   is    the    essence   of   what   is  true    in 
modern  nationalism,  and  in  the  claims  for 
the  rights  of  churches  and  of  trade  unions. 
It  was  the  ground  (probably  unconscious) 
of  the  decision  in  the  TafF  Vale  case,  and 
also  of  the  law  which  (practically)  reversed 
the  decision  and  reverted  to  the  medieeval 
notion  of  immunities  for  corporate  bodies. 
The  failure  to  recognise  the  truth  of  the 
personality  of  communities  other  than  the 
State    was   partly   at   the    bottom    of   the 
House  of  Lords'  decision  in  the  great  case 
of  the  Free  Church  of  Scotland,  as  anyone 
can  see  who  reads  Mr.  Haldane's  ingenious 
but  unsuccessful  effort  to  induce  the  Court 
to  apply  to  the  United  Free  Church  the 
ordinary   canons  of  personal  identity.    In- 


APPENDIX  II  251 

stead  of  this  they  said  they  were  consider- 
ing the  body  merely  as  a  "  trust,"  thinking 
by  that  to  escape  all  theological  discussion, 
and  being,  in  consequence,  dragged  further 
and  further  in  the  quagmire. 

The  mention  of  this  latter  case  illustrates 
the  point  I  wish  to  make — namely,  the 
importance  of  this  view  of  the  nature  of 
a  community  for  the  claims  of  the  Church. 
It  is  useless  for  a  modern  Church  to  assert 
claims  merely  by  Divine  right  against  the 
State ;  it  is  impossible  for  it  to  claim 
absolute  liberty  to  do  exactly  what  it  likes  ; 
for  the  State  exists  not  indeed  to  found,  as 
in  the  old  theory,  but  to  control  and  limit 
within  the  bounds  of  justice,  the  activities 
of  all  minor  associations  whatsoever.  The 
point  of  issue  is  not  whether  Churches  can 
do  anything  they  choose,  but  whether 
human  law  is  to  regard  them  as  having 
inherent  powers,  rights,  and  wills  of  their 
own — in  a  word,  a  personality.  If  they 
have,  their  activity  might  be  restrained  in 
so  far  as  it  interferes  with  others — thus, 
they  would  not  be  allowed  to  persecute, 
and  ought  not  to  be  allowed.  But  they 
will  have  certain  rights,  such  as  those  of 


252    CHURCHES  IN  THE  MODERN  STATE 

meeting,  excommunication,  development  of 
doctrine,  and  others,  which  are  inherent 
and  not  concessionary.  I  beUeve  that  even 
the  education  struggle  is  at  bottom  a 
struggle  between  those  who  recognise  this 
right  and  those  who  do  not.  And  because 
I  believe  it  to  be  true  about  man  in  society, 
quite  apart  from  religious  interests,  I  think 
it  certain  that  in  the  long  run  we  shall  Avin 
in  this  struggle.  If  we  do  we  shall  owe 
more  than  many  people  like  to  acknowledge 
to  the  men  who,  guided  by  the  pure  spirit 
of  disinterested  inquiry,  and  driven  by  the 
intellectual  passion  for  truth,  inspired  not 
merely  the  historical  but  the  legal  minds  of 
the  day  with  the  true,  opposed  to  the  false, 
theory  of  the  place  which  societies  formed 
for  special  ends  must  occupy  in  the  great 
all-embracing  State.  The  truth  is  that  both 
the  State  and  the  individual  as  commonly 
envisaged  are  not  facts  but  fictions.  There 
is  no  more  dangerous  superstition  than  that 
political  atomism  which  denies  all  power  to 
societies  as  such,  but  ascribes  absolutely 
unlimited  competence  over  body,  soul,  and 
spirit  to  the  imposing  unity  of  the  State. 
It  is  indeed  "the  great  leviathan  "  made  up 


APPENDIX  II  253 

of  little  men,  as  in  Hobbes's  title-page,  but 
we  can  see  no  reason  to  worship  the  golden 
image  which  Machiavelli  has  set  up.  That 
worship  ends  in  the  Church  with  Ultramon- 
tanism,  in  the  State  with  Absolutism.  We 
have  seen  how  Creighton's  theory  of  nation- 
alism introduces  the  true  federal  element 
into  the  notion  of  the  Church.  We  now 
see  how  Maitland's  "realism,"  his  doctrine 
of  the  inherent  powers  of  corporations, 
limits  the  equally  dangerous  activity  of  the 
State.  The  one  work  complements  the 
other.  One  is  the  justification  of  Angli- 
canism in  ecclesiastical  theory,  the  other 
will  form  the  true  defence  of  religious 
bodies  against  governmental  interference. 

III. — Lord  Acton 

The  third  of  the  three  Cambridge  pro- 
fessors we  are  delineating  was  not  the 
greatest,  but  he  was  the  most  mysterious, 
and  his  life  the  most  pathetic  of  the  three. 
Despite  all  attempts  to  explain  his  career, 
it  remains  to  most  people  shrouded  in 
enigma.  And  despite  his  academic  honours, 
his   European   fame,   and  his   peerage,   his 


254    CHURCHES  IN  THE  MODERN  STATE 

life  was,  on  the  whole,  a  failure.  While 
Creighton's  was  a  success  from  every  point 
of  view,  without  his  ever  being  vulgarised 
or  hardened  by  success,  while  Maitland 
achieved  all  that  he  might  reasonably  have 
expected,  and  was  honoured  and  loved  in 
his  lifetime  in  a  way  more  usual  to  the 
charlatan  than  to  the  true  genius,  Acton 
was  eminently  "  an  inheritor  of  unfulfilled 
renown,"  never  producing  any  one  work 
to  which  his  admirers  could  point,  and 
failing  in  the  grand  practical  scheme  of  his 
life — the  introduction  of  true  Liberalism 
to  the  Roman  Church,  and  the  elimination 
(or  at  least  the  setting  back)  of  the  forces, 
always  so  strong  in  any  religion,  that  made 
for  tyranny.  None  of  these  three  lived  to 
be  an  old  man,  though  Acton  was  the 
oldest  by  ten  years.  Eut  while  the  others 
did  more  than  most  men  do  in  double  the 
time,  and,  whether  in  literature  or  in  life, 
could  point  to  a  splendid  row  of  achieve- 
ments, Acton  could  show  little  beyond  a  few 
journalistic  enterprises,  always  ending  in 
failure  owing  to  the  hostility  of  the  Roman 
hierarchy ;  political  enthusiasm  (the  belief 
in  Irish  or  Boer  nationality)  that  in  their  last 


APPENDIX  II  255 

and  highest  expression  were  destined  to 
defeat ;  and  a  religious  and  moral  activity 
which  beat  itself  in  vain  against  the  in- 
exhaustible resources  of  ultramontane  dis- 
ingenuity  and  the  granite  walls  of  Jesuit 
intolerance.  Such,  as  it  appears  to  the  out- 
side world,  are  the  facts.  And  even  those 
who  cherish  most  his  memory  must  sorrow- 
fully concede  to  his  numerous  detractors 
that  Acton  produced  no  single  work  that 
can  be  called  epoch-marking,  that  he  did 
not  succeed  in  politics,  had  no  aptitude  for 
the  compromise  which  is  the  essence  of 
our  public  life,  and  never  for  one  moment 
"  held  the  stage."  It  is  not  insignificant  for 
English  habits  that  the  only  place  in  the 
Government  for  a  man  deep  in  the  counsels 
of  the  chief  of  the  party,  and  knowing  more 
than  nearly  all  the  Cabinet  put  together, 
should  have  been  that  of  a  Lord-in- AVaiting. 
Yet,  as  will  be  seen  when  more  of  his 
remains  are  given  to  the  world,  his  literary 
output  was  far  larger  than  people  are 
commonly  aware  of;  while  it  is  possible 
that  when  the  history  of  the  strange  century 
through  which  we  have  just  passed  is  really 
understood — perhaps    it    never    will    be — 


256    CHURCHES  IN  THE  MODERN  STATE 

Acton's  name  may  stand  higher  as  that 
of  one  who  really  prepared  for  the  future 
than  that  of  many  an  empire-builder  like 
Cecil  Rhodes,  or  many  an  ecclesiastic  of  the 
machine  like  Manning.  Manning,  be  it 
remembered,  was  essentially  a  Boss  Croker, 
and  has  no  other  claim  to  the  intellectual 
remembrance  of  his  country  than  belongs 
to  the  skilled  manipulator  of  other  men's 
abilities,  the  organiser  of  victory  for  a  party 
cause.  As  the  expression  of  this  type  at  its 
highest  Manning  will  always  be  worthy  of 
remembrance,  but  that  jealousy  of  Newman, 
which  was  the  main  motive  of  his  treatment 
of  the  great  Cardinal,  was  only  indefensible 
because  it  was  so  superfluous.  In  the  days 
to  come  people  will  not  compare  the  two 
men  to  Manning's  disadvantage.  But  they 
will  talk  and  write  of  Newman,  and  think  as 
much  of  Manning  (and  as  little)  as  of  the 
Jay  Goulds  or  Schnadhorsts  of  life,  to  whose 
class  he  essentially  belongs.  Some  will  put 
him  higher,  some  lower,  in  that  class.  For 
some  he  will  merely  be  a  name,  like  Car- 
dinal Ricci,  a  name  in  a  biographical  dic- 
tionary. But  he  will  never  in  the  future 
be  compared   with   Newman,  because  you 


APPENDIX  II  257 

can  only  compare  things  that  are  of  the 
same  kind — you  cannot  compare  a  rainbow 
with  a  popgun.  The  same  is  the  case  with 
Acton.  Manning  despised  him  as  the  suc- 
cessful trust  magnate  despises  an  artist 
content  with  a  small  income,  or  a  rival  who 
allows  himself  to  be  thwarted  through  some 
scruple  about  honesty.  Yet  it  is  possible 
that  in  the  days  to  come  it  may  be  found 
that  in  the  true  meaning  of  the  word  suc- 
cess— influence  on  human  life  towards  the 
noblest — Acton  was  as  much  superior  to 
Manning  as  an  honest  labourer  is  to  a  card- 
sharper.  Nobody  knew  better  than  Acton 
that  he  had  not  made  all  the  use  men 
expected  of  his  knowledge.  What  was  it 
that  paralysed  his  activity  ?  People  often 
say  that  it  was  the  mere  weight  of  the 
burden  of  his  knowledge,  or  the  love  of 
accumulation  which  grew  on  him,  as  the 
handling  of  gold  does  upon  a  miser.  I 
suspect  that  the  cause  lay  deeper.  When 
he  said  after  the  days  of  the  Vatican  Council 
were  over  that  "the  present  generation  are 
hopeless,  he  must  work  for  the  future,"  he 
expressed  at  once  his  ground  of  (com- 
parative)  inactivity  and  the  source  of  his 

R 


258    CHURCHES  IN  THE  MODERN  STATE 

enduring  fame.  That  fame  will,  I  am 
convinced,  rest  on  two  grounds  besides  the 
enormous  depth  and  range  of  his  knowledge 
— first,  his  absolute  insistence  on  the  para- 
mountcy  of  the  moral  law  in  politics,  and 
secondly,  his  perception  of  the  true  theory 
of  liberty  as  opposed  to  the  pretentious 
blare  of  modern  Continental  Liberalism 
and  the  yet  more  pretentious  fallacies  of 
despotism  masquerading  as  democracy. 

To  compare  him  for  a  moment  as  a 
lecturer  with  the  two  men  we  have  been 
discussing,  Acton's  distinction  lay  in  this 
moral  passion.  His  lectures  had  not  the 
abundant  fertility  of  suggestion  which 
characterised  Creighton,  nor  had  his  con- 
versation ;  he  did  not,  perhaps,  so  constantly 
drive  one  to  cross-examine  one's  ideas.  He 
had  not  Maitland's  gift  of  historic  imagina- 
tion, and  presented  the  results  of  study,  the 
fruit  of  reflection,  and  not  the  breathing 
movement  of  the  times  he  discussed.  He 
did  not  make  us  dig  into  ourselves  like 
Creighton,  nor  did  he  take  us  out  of  our- 
selves like  Maitland.  Yet  in  one  respect 
his  lectures  were  more  impressive  than  those 
of  either.     Less  suggestive  than  Creighton, 


APPENDIX  II  259 

less  enthralling  than  Maitland,  less  humor- 
ous and  unexpected  than  either,  he  excelled 
them  in  moral  passion  and  dignity  and 
weight  of  eloquence.  No  one  could  listen 
to  him  without  being  convinced  of  the 
tremendous  issues  which  lie  in  political 
choice,  or  of  the  absolute  difference  be- 
tween right  and  wrong  doing.  It  was  this 
burning  conviction  of  the  eternal  distinction 
between  good  and  bad,  and  the  immeasur- 
able gulf  that  divides  expediency  from 
justice,  that  gave  to  his  lectures,  his 
writings,  and  his  life  their  peculiar  signi- 
ficance. His  whole  life  was,  in  fact,  a 
protest  against  the  principles  of  Machia- 
velli — that  is,  of  purely  utilitarian  morals, 
whether  in  Church  or  State.  He  did  not 
deny  that  public  might  be  different  from 
private  morality.  What  he  did  deny  was 
that  there  was  no  such  thing  as  public 
morality  at  all.  In  the  long  run  either 
ethical  Individualism  or  Socialism  is  equally 
destructive  of  morals.  Individualism  in 
extremis  is  pure  anarchy.  Socialism — 
the  absolute  absorption  of  individuals  by 
the  community — destroys  conscience  (I  am 
speaking  of  pure  and  ethical  socialism,  not 

]{  2 


S60    CHURCHES  IN  THE  MODERN  STATE 

of  this  or  that  economic  arrangement). 
Acton,  hke  Creighton,  held  firmly  to  the 
truth  on  both  sides,  though  the  circum- 
stances of  his  struggle  within  the  Roman 
Church  caused  him  to  lay  stress  rather  on 
the  claims  of  the  individual. 

But  whoever  studies  carefully  Acton's 
writings  will  find  that  he  discerned  no  less 
clearly  than  Creighton  or  Maitland  the 
nature  of  the  struggle  before  us,  and  laid 
down  principles  which,  in  the  present  writer's 
judgment,  are  of  paramount — indeed,  of 
indispensable — value  in  the  days  that  are 
beginning.  His  theory  of  the  nature  of 
liberty,  that  there  must  be  room  not  only 
for  individual  rights  but  for  the  rights  of 
self-existing  communities  within  the  State, 
his  hatred  of  the  worship  of  the  "  mortal 
god  "  and  the  prostration  of  the  soul  before 
the  idols  of  democracy  or  despotism,  can 
easily  be  gathered  from  his  papers  on 
Nationality  and  Political  Thouglits  on  the 
Church,  in  addition  to  the  better-known 
lectures  on  the  History  of  Freedom.  The 
decisive  phrase  in  his  statement  that  while 
the    modern    State    allows    individuals    to 


APPENDIX  II  261 

choose  their  own  Church,  it  will  not  allow 
the  Church  to  rule  itself  and  have  its  own 
laws,  is  being  proved  now  by  events  in 
France,  as  it  was  effectively  demonstrated 
by  Bismarck's  attitude  in  the  Kultur-kampJ\ 
and  can  be  found  illustrated  in  the  utter- 
ances of  many  English  politicians  at  the 
present  moment.  His  theory  of  liberty 
was  at  bottom  the  same  as  that  of  Creigh- 
ton,  and  was  based  politically  upon  Burke 
and  the  great  theorists  of  Whiggism.  As 
he  was  careful  to  point  out,  it  was  by  no 
means  identical  with,  indeed  was  strongly 
opposed  to,  modern  "  Liberalism."  Despite 
the  supposed  unorthodoxy  of  his  position 
as  a  Roman  Catholic,  no  one  else  has  con- 
demned Cavour  and  the  policy  of  the  Italian 
Government  in  such  severe  terms — the  more 
unsparing  in  that  they  are  based  upon  a 
reasoned  principle  of  political  philosophy, 
and  not  upon  prejudice  or  passion. 

The  other  element  in  Acton  that  is  of 
importance,  namely  his  perception  that  the 
true  notion  of  liberty  is  essentially  Christian, 
was  the  possession  of  the  Catholic  Church  in 
its  earlier  phases,  was  obscured  by  Papalism 


262    CHURCHES  IN  THE  MODERN  STATE 

and  denied  by  Luther,  and  would  come  by 
its  own  again  when  the  mists  of  the  past 
thousand  years  had  rolled  away.  Like  Dr. 
Inge,  he  felt  that  Christianity  was  still  "a 
very  young  religion,"  that  there  was  no 
more  need  to  despair  because  it  had  lost 
for  a  few  hundred  years  the  true  principles 
of  pohtics,  than  because  for  a  moment  "  the 
world  had  found  itself  Arian."  To  us,  of 
course,  this  position  is  the  strongest  pos- 
sible justification  of  Anglicanism,  and  recent 
events  are  forcing  Churchmen  of  different 
schools  to  see  this.  Like  many  other 
Churches,  our  Church  has  made  in  the 
past  the  mistake  of  asking  for  worldly 
power  instead  of  religious  freedom,  and 
she  is  now  reaping  the  fruit  of  that  error. 
But  first  the  education  question,  then  pro- 
bably the  marriage  problem,  and,  it  may 
be  later,  doctrinal  and  other  matters  will 
drive  Churchmen  to  claim,  not  the  support 
of  the  State  against  other  creeds,  as  in  old 
days  of  uniformity,  not  even  social  prestige 
as  against  dissent,  as  is  sometimes  the  case 
to-day,  but  the  right  to  "  live  and  let  live," 
confident  that  in  the  long  run  liberty  can 


APPENDIX  II  263 

never  injure  the  cause  of  truth,  and  that 
a  Church  which  dispenses  with  every  form 
of  appeal  to  lower  motives  will  make  up 
by  intensity  of  enthusiasm  in  its  members 
for  any  diminution  of  strength  in  their 
numbers.  The  theory  of  liberty  is  always 
concerned  at  bottom  with  human  character, 
and  is  based  upon  the  belief  that  it  is  more 
important  that  men  should  do  right  from 
proper  motives  than  that  their  external 
actions  should  be  correct.  Acton's  position 
as  a  member  of  a  body  but  recently  per- 
secuted in  his  native  land,  and  as  a  prota- 
gonist of  a  cause  oppressed  within  his  own 
Church,  enabled  him  to  see  the  truth  more 
clearly  than  most  men.  His  knowledge  of 
the  past  helped  him  to  correlate  it  with  the 
conflicts  of  the  Church  against  a  Pagan  or 
non-Christian  State  in  earlier  ages.  His  belief 
in  the  future  led  him  to  hope  that  not  indeed 
till  after  many  struggles  and  difficulties, 
but,  none  the  less,  decisively,  at  last  the 
true  principles  of  liberty  would  be  realised 
in  a  State  controlling  but  not  oppressing 
Churches,  nations,  sects,  communities  within 
it,  preventing  mutual  injustice,  while  recog- 


264    CHURCHES  IN  THE  MODERN  STATE 

nising  their  inherent  life,  and  by  a  Church 
once  more  awakened  to  the  true  claims  of 
justice,  in  which  neither  should  the  indi- 
vidual be  oppressed  by  a  centralised  bureau- 
cracy, nor  should  mere  personal  caprice  usurp 
the  functions  of  order  and  authority.  This 
ideal  we  of  the  English  Church  may  well 
feel  is  more  likely  to  be  realised  through 
our  peculiar  heritage  of  English  liberty 
and  universal  order  than  in  any  other  way. 
Indeed,  it  is  the  conviction  of  some  of  us 
that  one  of  the  main  tasks  before  our  Church 
is  to  realise  this  herself,  and  to  cause  its 
recognition  at  once  by  the  State  and  by 
other  nations.  That  Acton  did  not  see  it 
is  no  more  wonderful  than  that  Maitland 
distrusted  all  religious  organisations  (for 
all  have  given  ground  for  the  mistrust  of 
scientific  men),  just  as  the  reliance  on  "  the 
Establishment  "  and  its  attendant  snobbery 
would  naturally  arouse  contempt  in  a  man 
brought  up  as  was  Acton.  But  the  fact  re- 
mains that  Acton  and  Maitland,  who  did 
not,  no  less  that  Creighton,  who  did,  discern 
the  logical  result  and  visible  embodiment  of 
their  conceptions,  will  all  alike  have  con- 


APPENDX  III  9,65 

tributed  towards  the  recognition  of  truth  in 
regard  to  societies  within  the  nation,  and 
all  alike  have  done  something  to  make  more 
secure,  because  better  understood  and  self- 
realised,  the  claims  and  nature  "  of  this 
Church  and  realm." 


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